Rethinking Historical Jurisprudence (Rethinking Law series) 1802200738, 9781802200737

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Rethinking Historical Jurisprudence

RETHINKING LAW The Rethinking Law series is a forum for innovative scholarly legal writing from across all substantive fields of law. The series aims to enrich the study of law by promoting a cutting-edge approach to legal analysis. Despite the old maxim that nothing is new under the sun, it is nevertheless true that laws evolve and contexts in which laws operate change. Law faces new and previously unforeseen challenges, responds to shifting motivations and is shaped by competing interests and experiences. Academic scrutiny and challenge is an essential component in the development of law, and the act of re-thinking and re-examining principles and precepts that may have been long-held is imperative. Rethinking Law showcases authored books that address their field from a new angle, expose the weaknesses of existing frameworks, or ‘re-frame’ the topic in some way. This might be through the introduction of a new legal framework, through the integration of perspectives from other fields or even other disciplines, through challenging existing paradigms, or simply through a level of analysis that elevates or sharpens our understanding of a subject. While each book takes its own approach, all the titles in the series use an analytical lens to open up new thinking. Titles in the series include: Rethinking Law and Language The Flagship ‘Speech’ Jan M. Broekman Rethinking the Law of Contract Damages Victor P. Goldberg Rethinking Environmental Law Why Environmental Laws Should Conform to the Laws of Nature Jan G. Laitos Rethinking Comparative Law Simone Glanert, Alexandra Mercescu and Geoffrey Samuel Rethinking the Regulation of Cryptoassets Cryptographic Consensus Technology and the New Prospect Syren Johnstone Rethinking Law, Regulation, and Technology Roger Brownsword Rethinking Historical Jurisprudence Geoffrey Samuel

Rethinking Historical Jurisprudence Geoffrey Samuel Professor Emeritus, Kent Law School, UK

RETHINKING LAW

Cheltenham, UK • Northampton, MA, USA

© Geoffrey Samuel 2022 Cover image: Reproduced with the permission of the National Library of Scotland. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2022941193 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781802200744

ISBN 978 1 80220 073 7 (cased) ISBN 978 1 80220 074 4 (eBook)

EEP BoX

Contents Prefaceix Acknowledgementsxi Introduction to historical jurisprudence

1

1

Paradigms and revolutions 1 Introduction 2 Obstacles and revolutions 3 Epistemological questions 4 Realism and anti-realism 5 Social science and revolutions 6 Law as science 7 Validation 8 Law as social science 9 Science and progress 10 Concluding remark

8 8 10 13 16 18 20 25 27 31 33

2

Schemes and paradigm orientations 1 Introduction 2 Authority paradigm 3 Holism versus individualism 4 Level of observation 5 Truth versus fiction 6 Schemes of intelligibility 7 Dialectical scheme 8 Concluding remarks

34 34 37 42 44 46 50 53 54

3

Roman legal methods and reasoning (1) 1 Introduction: schemes of intelligibility and roman texts 2 Overview of the Roman texts 3 Roman legal reasoning: general overview

56 56 57 60

v

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4 5 6 7 8

Formalism and structuralism Casuistry and causality Dialectical analysis Analogy and inference: the language and structure of facts Summarising observations

65 70 72 75 77

4

Roman legal methods and reasoning (2) 79 1 Utilitas and functionality 79 2 Fiction and functionalism 81 3 Regulae iuris86 4 Interpretatio (ars hermeneutica)89 5 Rules and reasoning 91 6 The whole (form) and its parts (substance) 93 7 Roman law as myth 98 8 Concluding observations 100

5

Post-Roman methods and methodologies 104 1 Method and authority 104 2 Scholastic epistemology 109 3 Hermeneutical turn (ars hermeneutica)113 4 Interpretation (de verborum significatione)115 5 Structural turn (ius civile in artem redactum)118 6 Mathematical turn (mos mathematicus)121 7 Scientific turn (methodus dogmaticus)125 8 Dogmatics and the common lawyer 127 9 Dialectical tradition (dialectica britannica)129 10 Methodology and formalism: some reflections 134

6

Contemporary methods and methodological issues 137 1 Functionalist turn (utilitas)137 2 Actionalist turn (homo singularis)142 3 Causal turn 144 4 Causality and economics 148 5 Culturalist turn (ex cultura ius oritur)150 6 Culturalism and method 152 7 Culturalism and theory 155 8 Culturalism and epistemology 158

Contents

9

Concluding remark

vii

162

7

Terminology and the foundations of legal theory 163 1 Introduction 163 2 Terms and names 165 3 Terminology and definition 167 4 Defining law (ius) itself 169 5 Ius naturale171 6 Ius commune174 7 Ownership (dominium, proprietas)176 8 Ius possessionis179 9 Right (ius and dominium)183 10 Concluding remark 189

8

Taxonomy and theory building  190 1 Order and knowledge (ars et scientia)190 2 Private law (ius privatum)192 3 Law of persons (ius personarum)200 4 Law of things (ius rerum)205 5 Law of actions (ius actionum)209 6 Public law (ius publicum)212 7 Contract (contractus) (1): ius publicum and political theory 216 8 Contract (2): ius privatum218 9 Concluding remark 222

9

Private law theory and the resurgence of formalism 1 Introduction: neo-formalism 2 Formalism: historical considerations 3 Foundations of modern formalism 4 Formalism and the common law 5 External formalism 6 Formalism and objectivity 7 Concluding remarks

10 Have there been scientific revolutions in law? 1 Revolutions and legal thought 2 Was legal humanism a revolution?

223 223 227 230 233 237 241 245 247 247 252

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3 4 5 6 7 8

Revolutions and the common law English law in the Nineteenth Century Revolution in the Nineteenth Century? Revolutions in the modern law Why no revolutions? Weaker Kuhn thesis?

254 257 260 262 266 270

11 Is legal knowledge cumulative (or has there been progress in law)? (1) 1 Introduction 2 Preliminary difficulties 3 Models and programmes 4 Cumulative knowledge in the social and human sciences 5 Explanation (causation) and understanding (hermeneutics) 6 Vertical and horizontal movements 7 Legal humanism and its contribution 8 Legal evolution 9 Dialectics to structuralism (and back)

274 274 275 279 282 284 287 291 296 298

12 Is legal knowledge cumulative (or has there been progress in law)? (2) 1 Progress (or not)? 2 Legal theory and progress 3 Progress or refining? 4 Historical jurisprudence and society Systems and society 5 6 Law and discourse on law 7 Back to Baldus via the natural lawyers? 8 Concluding remark

300 300 305 309 312 315 319 323 326

Conclusion327 Bibliography332 Index of names363 Index of subjects367

Preface Historical jurisprudence has for too long been identified with the nineteenth-century school of legal evolution associated with jurists such as Karl von Savigny and Sir Henry Maine. These jurists are undoubtedly of major importance, but historical jurisprudence needs to be rethought because there is much more to the history of legal thought than the ideas, and ideology, of the nineteenth and early twentieth-century jurists. The history of legal theories and methods is relevant to today’s lawyers because much of what is passed off as modern theorising – even political theorising – is not as original as many theorists might like to think. More important, however, is the relevance of the jurists of the past to contemporary legal epistemology, that is to say to the methods and thought processes associated with jurists and practitioners. What is legal knowledge and its methodology? One important response is to ask: what has legal knowledge and its methodology been? I owe a huge debt to others. This debt is reflected in this book’s bibliography, which lists not just those authors cited in the chapters but many others who have been of direct and indirect influence. I must thank all those journal editors who have been so encouraging in the past – especially Michael Palmer of the Journal of Comparative Law – and to all those colleagues who have been so helpful and supportive (and I have mentioned names in my previous Elgar books). Many thanks also to everybody at Edward Elgar Publishing, who are supportive, efficient and friendly. A quick note about the cover. The railways were to have a major impact on legal development and are thus of much relevance to historical jurisprudence. In addition, maps have had (and still have) a metaphorical role in legal thought that again makes them relevant for historical jurisprudence. Many thanks, therefore, to the National Library of Scotland for permission to reproduce the 1922 Ordnance Survey plan showing how the railways once dominated the area north of Camden Town Hall.

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This book is dedicated both to my immediate family and to the memory of my late sister Gillian (1939–2021), who became a ‘National Treasure’ (so said the IWM) thanks to the artist Ethel Gabain (see www​.iwm​.org​.uk/​collections/​ item/​object/​10200). Geoffrey Samuel Blean, Kent January 2022

Acknowledgements This book draws heavily from these published articles: Is Legal Formalism Nothing but Pastiche? (2020) 15 Journal of Comparative Law 347 Can Social Science Theory Aid the Comparative Lawyer in Understanding Legal Knowledge? (2019) 14 Journal of Comparative Law 311 Have There Been Scientific Revolutions in Law? (2017) 11 Journal of Comparative Law 186 What is the Impact of Culture on Legal Theory? (2019) Droit et Société, No 101, 181 Is Legal Knowledge Cumulative? (2012) 32 Legal Studies 448 The author and publisher would like to thank, therefore, the editors of the Journal of Comparative Law and of Droit et Société and the Society of Legal Scholars (Legal Studies) for their permission to republish.

xi

Introduction to historical jurisprudence The term ‘historical jurisprudence’ acquired a particular meaning during the nineteenth and twentieth centuries. The term is associated with the German Historical School, in particular the German jurist Karl von Savigny (1779–1861), and in England with the work of Sir Henry Maine (1822–88). Peter Stein made the point that historical jurisprudence ‘is understood as being concerned with theories of legal evolution’.1 This theory had earlier been described by Stein as ‘a group of theories which claim to explain legal change not merely in historical terms but as proceeding according to certain determinate stages, or in a certain pre-determined manner’.2 As Stein also pointed out, legal evolution was closely associated with Roman law.3 However, said Stein, historical jurisprudence and legal evolution fell into disrepute because the notion of evolution tended to be associated with the idea both of progress in society and of science and its methods.4 By the second half of the twentieth century this progress element had been largely debunked by analytical jurisprudence and by post-colonial and cultural thinking. Moreover, the idea that the methods of the natural sciences could be applied to the social and human sciences was being treated with much scepticism. Historical jurisprudence, it seemed, was destined to fall into disuse. However, Brian Tamanaha challenges this view. Historical jurisprudence did not fall into disuse, he says, ‘but rather its core insights carried on, morphing into sociological jurisprudence and legal realism, ultimately becoming a mainstream view of law’.5 He equally mentions comparative law as a vehicle for expressing insights first developed in the context of historical jurisprudence.6 Perhaps, then, the problem is not one of substance but of language; the expression ‘historical jurisprudence’ became tainted by association with a particular historical school of jurists who, while advancing ideas that were to prove insightful, also espoused views that were not. This present work has as its goal to rethink the expression ‘historical jurisprudence’. It will lift the

3 4 5 6 1 2

Stein (1986), at 294. Stein (1980), at 122. Ibid, at 122–3. Ibid, at 124. Tamanaha (2016), at 335–6. Ibid, at 336. 1

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term out of its historical context and its connection to progressive societies and evolution and use it as a vehicle for rethinking legal history from a particular viewpoint. Now, it would be tempting, but arrogant, to ask: how might legal history be rethought? It would be arrogant because there are many legal histories and the idea of rethinking all of these would be beyond a viable or feasible – or fair – research question. How historical jurisprudence might be rethought is another matter, because there are research questions that are feasible and viable at this more abstract level. Nevertheless, the question of how historical jurisprudence might be rethought, given the weight of the authority of some of the main legal history scholars, is still daunting. How can one rethink the work of those such as Maitland, Ullmann, Milsom, Baker, Stein, Kelley, Gordley, Ibbetson and Lobban – not to mention the Continental historians and the Romanists – in any serious scholarly way? The response depends, of course, on the research questions to be posed. Accordingly, this present work will look at the history of legal thought, method and reasoning from the position of two questions that have, perhaps, not been fully investigated by legal historians.7 First, taking its cue from the work of Thomas Kuhn, have there been scientific revolutions in the history of law? Second, do jurists of today know more about law as a body of knowledge than jurists of the past? In other words, does the history of law reveal a body of cumulative knowledge? These two questions are epistemological in their orientation and thus the primary aim of this present work is to provide a legal history (diachronic) approach to legal epistemology. Historical jurisprudence could, then, be lifted out of its legal evolution-tainted association and rethought as a domain concerned with legal epistemology. There are, as mentioned, many legal histories. One can focus on institutions – the history of, for example, the various courts – or on particular topics such as contract, obligations or property. The quite recent death of Brian Tierney (1922–2019) should remind one of the pioneering work pursued by this historian and his mentor, Walter Ullmann (1910–83), on the history of public law and constitutional thought. Equally, one can write a social history of law or an economic history. Some historians have tried to write histories that cover all of these approaches. What, then, is special about an epistemological history? In order to answer this question one needs first of all to undertake a discussion of epistemology itself and its relevance for law. Briefly, such a history will put an emphasis on the methods, notions and theories that form the fundamental basis of legal knowledge; epistemology operates here on a meta-level. It attempts to understand legal knowledge as a ‘science’ and thus to examine its principles, its terminology, its taxonomy and its methods as the fundamental constituents

7

But cf Fekete (2021).

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of this ‘science’.8 In saying this, one must appreciate that the expression ‘science’ is not being used here to imply that law is a science in the natural science sense of the term, although in Germany law does have this status.9 It is simply being employed not just as a more precise form of knowledge but as a means of viewing legal thought through a Thomas Kuhn framework. Such a framework focuses not on law as such (that is, on the detailed analysis of legislative texts and court decisions through the ages) but on the texts concerned with legal knowledge. Legal factual problems will not be ignored, for how facts are treated and conceptualised by lawyers is a central issue in any Kuhn framework. But it is how lawyers have engaged with these facts and with the legal texts which is the knowledge issue that will form the focal point of this present work. This rethinking of historical jurisprudence will, therefore, focus primarily upon the methods, the notions and concepts, the terminology and the taxonomy employed by jurists and lawyers over the past two millennia. It will focus, in short, on the reasoning of lawyers and jurists. Now, legal reasoning today is usually associated, although not exclusively, with the reasoning of judges who in most Western legal systems are under an obligation to justify their decisions. This was not always the case. Indeed in the civil law tradition many superior courts, before the nineteenth century, did not give reasons for their decisions.10 As for the common law courts, the existence of the jury, who came to their verdict without giving reasons, meant that until the sixteenth century the judge was little more than a referee.11 For much of the history of Western law legal reasoning was, therefore, in the hands of law professors and other legal commentators.12 And in the civil law world many of these commentaries and other legal treatises were focused on Roman law as found in the Corpus Iuris Civilis (see Chapter 3, section 2). Thus the history of legal reasoning is closely interrelated with these Roman source texts which, even for the modern common law, have provided the concepts and terminology for legal thought. History raises its own epistemological issues. These, also, will need to be examined, and so along with a general opening discussion on epistemology itself, there will have to be some space devoted to historiographical issues.13 In fact, one focal point relevant to both discussions is comparison. Rethinking legal history is thus an opportunity for comparing the histories of the common law and the civil law in order to see if such a comparison can of itself gen

8 9

12 13 10 11

See generally Atias (1985). For an overview see Schulze (2017). Sirks (2012), at 239. Baker (2003), at 48–50. See also Langbein (2012). See Stein (1999). See also Ernst (2019), at 108­–10.

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erate new knowledge about law and legal thought. Of course, comparison in law – indeed, in other disciplines as well – raises its own method and theory issues, and while some of these issues will be touched upon, most have been investigated elsewhere.14 What, then, will be the schematic framework for pursuing the two research questions? Some general chapters will look, first of all, at the epistemological and historiographical aspects of a Kuhnian approach to legal history (Chapters 1–2). These will be followed by chapters examining legal reasoning and thought through the various periods themselves, determined, as will be seen, by particular methodological attitudes (Chapters 3–6). Two further chapters will discuss some of the basic concepts and categories that have acted as the building blocks for legal theories (Chapters 7–8), and these chapters will be followed by one looking, critically, at neo-formalism (Chapter 9). The final chapters will then re-look (so to speak) at these periods through the frameworks of the two research questions that motivate this rethinking (Chapters 10–12). Finally in this introduction, a brief literature review is in order, if only to indicate the key influences on this present work. But first something should be said by way of justification for a diachronic survey of legal thought. Mention has already been made of the importance of the Roman law texts. A history of legal reasoning could, probably, be entitled ‘the Roman foundations of legal method and legal theory’.15 However, such a work might well seem at first sight an esoteric exercise, given that only a small percentage of students in law schools, at least in the common law world and in some civil law countries, study Roman law and (or) legal history, and not that many, relatively speaking, study legal theory. And so of course the question is this. What is the value for law students (and indeed others) in studying legal thought and method from this historical perspective? One purpose of this present work is to try to answer, in a positive way, this question. In other words, the book sets out to examine the value of what can be obtained from such a (diachronic) approach and, further, to argue that, for students at least, this value is considerable. An in-depth appreciation of legal texts written over the past two millennia on Roman law (and in fact stretching beyond this period) will provide a very solid basis for understanding all aspects of legal thought and method today. This said, such a history is not without its problems in terms of the legacy it has left with regard to law as a contemporary academic discipline. Do we now know all there is to know about Roman law and its legal reasoning legacy?

See Samuel (2014); Glanert, Mercescu & Samuel (2021). See Stein (1999).

14 15

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Such a question raises another about this present book. Is it in any way an original project? In one sense it is not at all original, in that several learned works on this topic were published in the United Kingdom (leaving aside those published in other languages) during the last century. Although not as such devoted to legal reasoning, Herbert Jolowicz’s Roman Foundations of Modern Law contains much that is relevant; it was published after his death and was to form part of a much larger project.16 Professor Jolowicz was the author of another work in some ways more directly concerned with the subject-matter of this present book, again published after his death. Lectures on Jurisprudence is for the most part a history of jurisprudence from Ancient Greece up until the middle of the twentieth century (although it does not stretch far enough to embrace the work of Herbert Hart).17 A third, and no less important, influence is Walter Jones’ Historical Introduction to the Theory of Law, published in 1940, and so again a work that does not embrace the leading theorist of the later twentieth century.18 What distinguishes Jones’ book is not just its astonishing learning – the author seems to have had a deep knowledge of the original sources from all the main historical periods and traditions of law – but also the originality of its approach, dividing theories into various rather original chapter headings. These three works form, then, the tradition upon which this present offering is founded. In fairness to other scholars, Jolowicz and Jones are not the only publications of influence. For example, Peter Stein’s Legal Evolution, which focuses largely on the nineteenth century, and the numerous books of Walter Ullmann, concerned with medieval law, need to be mentioned.19 With regard to Renaissance jurisprudence, the works of Donald Kelley and Ian Maclean are central;20 and no discussion of English legal history can escape the fundamental contributions made by SFC Milsom, Sir John Baker and Michael Lobban.21 Stephen Waddams’ monographs on the common law of the nineteenth and twentieth centuries are by far the best academic reflection on this legal tradition during this particular epoch.22 Aldo Schiavone’s book on the development of ius in the history of Rome contains major insights into Roman legal thought and the approaches to law of the different Roman jurists.23 Professor Monateri’s criticism of Schiavone must, equally, not be ignored; he is offering a much needed

18 19 20 21 22 23 16 17

Jolowicz (1957). Jolowicz (1963). Jones (1940). Stein (1980); Ullmann (1946); Ullmann (1975). Kelley (1970); Maclean (1992). Milsom (1981); Milsom (2003); Baker (2003); Baker (2019); Lobban (1991). Waddams (2003); Waddams (2011). Schiavone (2017).

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alternative and dissenting view to the perhaps over-enthusiastic assertions of Europe’s Romanists.24 One other book needs a very serious mention. This is James Gordley’s The Jurists, published in 2013, which basically covers the subject-matter of this present book, but which does so with a depth of learning that is equal to that of Jones and far exceeds that of the present author.25 Indeed, this present project, long in gestation, was temporarily abandoned on the appearance of Gordley’s book. Was there really room now for another, probably inferior, book covering the same subject-matter? Certainly the work of the jurists of the past has been well covered, but perhaps there remain some questions – besides the two fundamental research questions underpinning this rethinking of legal history (revolutions and cumulative knowledge) – that can usefully be pursued. This new century saw the growth in the common law world of a movement that might be labelled neo-formalism (see Chapter 9). To understand such a movement, one must of course understand what is meant by formalism in law. Another purpose of this present work is, then, to provide an answer, from an historical viewpoint, to this question. What is legal formalism? This question provokes another. What is the value, intellectually, of this formalism today? Or, put another way: has law as an academic discipline anything to offer social science epistemology, or is law a discipline that simply imports, rather than exports, methods and ideas? And what might be the implications of this question for legal education and for the future of law schools – indeed, perhaps for the legal processes in general – which may now be facing a crisis as a result of the Covid-19 pandemic? Whatever the situation, any book yet again reminding contemporary students and jurists of the very rich contributions made by Roman, medieval and Renaissance jurists cannot be all bad. Finally, as regards Kuhn’s book, this present work is not the only text to examine the notions of paradigm and scientific revolutions in law. Some legal historians, such as Donald Kelley, have referenced Kuhn in the context of periods of legal change, and Christian Atias (1947–2015) directly considered the relevance of Kuhn to law (see Chapter 10). More recently, an important work by Balázs Fekete has argued that a lighter version of Kuhn’s theory can be useful in understanding change in approaches, especially with regard to the history of comparative law.26 One must not forget, either, that Kuhn’s proposition itself has not escaped criticism. This said, in The Oxford Handbook of European Legal History (2018) there is no mention of Kuhn in the index;27

26 27 24 25

See now Monateri (2021), at 48–70. Gordley (2013). Fekete (2021). Pihlajamäki, Dubber & Godfrey (2018).

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in The Oxford Handbook of Legal History (2018) he is mentioned in passing several times, but there is no attempt to examine his ideas in the context of legal history.28 Even in a work claiming to be a subversive legal history, Kuhn is not mentioned in the index;29 nor is his scientific revolutions theory examined in a book attempting to bridge the gap between legal history and legal theory.30 However, the theory is given a page in a book on comparative legal history.31 Mention of this lack of discussion in works on legal history is not necessarily to be taken as a criticism of legal historians; it may well be evidence that many such historians view Kuhn’s ideas as not being relevant to law. This present work will no doubt be regarded as supporting such a position, although, whatever one thinks of Kuhn and his relevance to law, his book on scientific revolutions is of such major importance in epistemology that no historian should neglect an engagement.32 Yet care must be taken. Superficial and shallow applications to legal history of notions such as revolution and paradigm probably do more harm than good.

30 31 32 28 29

Dubber & Tomlins (2018). Sandberg (2021). Del Mar & Lobban (2016). Moréteau, Masferrer & Modéer (2019), at 434. Well over a million copies of Kuhn’s book have been sold.

1. Paradigms and revolutions Any rethinking of historical jurisprudence must surely ask whether the history of legal thought has been one of linear development or one of obstacles and, perhaps, revolutions. Now, to ask whether there have been scientific revolutions within the discipline of law is to invite a reflection upon the thesis of the late Thomas Kuhn (1922–96) and its possible relevance for legal history. In order to pursue such a reflection it is evidently important to have a detailed understanding of Kuhn’s actual thesis and of the terms that he employed in asserting it. The wider epistemological relevance of the thesis is also of importance. It is the purpose of this chapter, accordingly, to examine Kuhn’s thesis in the context of both the natural sciences and the social and human sciences.

1. INTRODUCTION A conference in 2016 on the law of obligations was devoted to revolutions in thinking. The organisers implied in their call for papers that the publication of Goff and Jones’ The Law of Restitution half a century ago was a publication event comparable to Newton’s work on gravity and Einstein’s book on general relativity.1 Such a comparison might surprise natural scientists, if not social scientists, but the organisers did go on to pose some serious questions intended to act as the thematic basis of the conference. What changes mark the most significant paradigm shifts in private law? What effects have they brought? What has provoked them in the past, and what might deliver them in the future? The

1 ‘Revolutions in thinking about our governing rules often cause palpable shifts in their foundations: 2016 is the 350th anniversary of Newton’s “discovery” of gravity, and the 100th anniversary of Einstein’s ‘discovery’ of general relativity. It is also the 50th anniversary of the publication of Goff and Jones’ The Law of Restitution, and the 500th anniversary of the publication of Sir Thomas More’s Utopia. What changes mark the most significant paradigm shifts in private law? What effects have they brought? What has provoked them in the past, and what might deliver them in the future?  These questions are relevant across the entire sweep of the law, and are common to all jurisdictions. We hope that this theme and its underlying questions will provoke serious discussion about the types of issues which unsettle the law, and how we as lawyers help to resolve the ructions’: Call for Papers: Obligations VIII: Revolutions in Private Law (email 25 January 2015). Copy on file with author. And see: http://​private​-law​-theory​ .org/​?p​=​6131. See also Goff & Jones (1966).

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hope, stated the call for papers, was to ‘provoke serious discussion about the types of issues which unsettle the law, and how we as lawyers help to resolve the ructions’. These questions contain many assumptions, the most important of which is that there have been changes of paradigm within the discipline of law resulting from scientific revolutions. But have there been scientific revolutions in law? In order to answer this question, several sub-questions must be posed and investigated. What is meant by ‘scientific’ and what is meant by ‘revolution’? What is meant by ‘paradigm’ and what amounts to a change of paradigm? No doubt legal knowledge has been ‘unsettled’ from time to time over the past two millennia, but have these unsettlements amounted to ‘revolutions’? Have they resulted in a change of ‘paradigm’? All of these questions – to be examined in this chapter – are important, for, viewed from a Kuhn-focused perspective, if a work like Goff and Jones in law is to be compared analogically with the works of Newton and Einstein in science it suggests that law is a discipline within which there have been changes of enormous magnitude, intellectually and socially. It suggests not just that the paradigm dominant before 1966 has now been completely replaced but that, in the past, there have been similar paradigm revolutions in law. Yet what this chapter and the ones that follow will indicate is that the history of European legal thought suggests that the evidence of such paradigm revolutions of the Kuhn type is not strong (although there have been changes of method and outlook). Indeed, it will be argued, importing Kuhn’s thesis into law, at least in its ‘heavy’ sense,2 shows a lack of epistemological sophistication with respect both to Kuhn and to legal history. In turn, this perhaps leaves jurists open to some ridicule from epistemologists outside of law. Of course, jurists are not the only social scientists to be guilty of lightening, if not trivialising, Kuhn’s thesis; but law is one of the – perhaps the – oldest of the social sciences and is thus a discipline in which the Kuhn thesis can be examined in some depth. This scepticism with regard to scientific revolutions in law is valuable with regard to an understanding of the nature of legal knowledge and legal reasoning because it could well confirm that a diachronic approach ought not be lightly dismissed. Do the jurists of the past have relevant things to say to the jurists, and to the students of law, of today? To what extent do contemporary theories of law reflect ideas that have been raised and pursued in the past? It has been noted by one contemporary jurist that, despite its history – or histories – law conducts itself as if it had no history; it is studied extracted from time.3



2 3

Cf Fekete (2021). Atias (2009), at 205.

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The existence or absence of revolutions within the history of legal thought will probably not, it must be said, provoke a change of attitude, but reflection upon the question might, if nothing else, help emphasise the connections between legal knowledge and other knowledge areas. It might also present legal history in a more active light.4

2.

OBSTACLES AND REVOLUTIONS

The thesis that there have been revolutions resulting in paradigm change in the history of the natural sciences is associated with work by Thomas Kuhn (1922–96).5 In fact, the idea that the history of science is not necessarily one of linear development precedes Kuhn; the French epistemologist and historian of science Gaston Bachelard (1884–1962) argued that the development of the sciences was marked by ‘epistemological obstacles’ and that scientific thought was able to continue progressing only after these obstacles had been overcome.6 Interestingly, Kuhn, who read French, said that he was unaware of Bachelard’s work when writing his own book,7 but what is nevertheless interesting when the two authors are taken together is that they see the history of science in terms more of ruptures, or at least jumps, than of continuity.8 According to Kuhn, these ruptures are represented by three notions, the first two being revolution and paradigm. Between these two notions there is a third. ‘Normal science’ was an expression used by Thomas Kuhn to describe a period of science based upon past scientific achievement which provides the foundation for its further practice. The achievements are recounted by science textbooks and these ‘textbooks expound the body of accepted theory’.9 This period of normal science closely relates to Kuhn’s term ‘paradigm’, which the author, in his postscript to the second edition of his book, says is used in two different senses: On the one hand, it stands for the entire constellation of beliefs, values, techniques, and so on shared by the members of a given community. On the other, it denotes one sort of element in that constellation, the concrete puzzle-solutions which, employed as models or examples, can replace explicit rules as a basis for the solution of the remaining puzzles of normal science.10

Cf Sandberg (2021). Kuhn (1970). 6 Bachelard (1938). 7 Un entretien avec Thomas S Kuhn, Le Monde, 6 February 1995, 13. 8 However, there are also important differences between the two writers: Bensaude-Vincent (2006), at 979. 9 Kuhn (1970), at 10. 10 Ibid, at 175. 4 5

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The first sense of the term, continues Kuhn, is sociological. It is what members of the scientific community share, which has the converse effect of defining the community itself.11 It is sociological in that this community and its paradigm can be the object of empirical research. The second sense is internal to the member of the scientific community. It is a way of seeing how problems are tackled and solved.12 ‘Scientists solve puzzles’, says Kuhn, ‘by modeling them on previous puzzle-solutions, often with only minimal recourse to symbolic generalizations’.13 It is a matter of ‘learning from problems to see situations as like each other, as subjects for the application of the same scientific law or law-sketch’.14 In short, says Kuhn, it ‘is “tacit knowledge” which is learned by doing science rather than by acquiring rules for doing it’.15 This tacit knowledge from time to time gives rise to anomalies, in that normal science ‘does not aim at novelties of fact or theory and, when successful, finds none’.16 However, such novelties of fact and theory do present themselves and when this happens, if such novelties cannot be reconciled with the existing paradigm, a change of paradigm is induced. ‘Produced inadvertently by a game played under one set of rules’, as Kuhn himself put it, ‘their assimilation requires the elaboration of another set’. And the result is that the scientific enterprise ‘is never quite the same again’.17 The key point here is this last expression. A paradigm revolution is not just a matter of seeing things a little differently; it is a complete change of view. It is as if ‘the professional community had been suddenly transported to another planet’.18 One is talking of a completely different world. ‘What were ducks in the scientist’s world before the revolution’, wrote Kuhn, ‘are rabbits afterwards’.19 In this new post-revolution world, the scientist needs to be ‘re-educated’ since the old and the new worlds are ‘incommensurable’.20 What triggers this revolution is, of course, not just novelties of fact and theory; it is normal science itself, because it leads to anomalies and then to crises. And these crises are terminated by a scientific revolution.21 As Kuhn said, to make the transition from Newtonian physics to Einstein’s universe, the whole conceptual web had to be changed. The same transition 13 14 15 16 17 18 19 20 21 11 12

Ibid, at 176. Ibid, at 189. Ibid, at 189–90. Ibid, at 190. Ibid, at 191. Ibid, at 52. Ibid, at 52. Ibid, at 111. On which see Nouvel (2006), at 842. Kuhn (1970), at 112. Ibid, at 122.

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issue was to be found with the Copernican revolution. It ‘was a whole new way of regarding problems of physics and astronomy, one that necessarily changed the meaning of both “earth” and “motion”’.22 In noting this Kuhn wanted to emphasise his principal point, that is, ‘the incommensurability of competing paradigms’.23 This is an important point because, despite Kuhn’s own (admitted) ambiguity over the definition of the expression ‘paradigm’,24 the term expresses not just some change of viewpoint or method – it expresses a complete and total change of vision in which participants from the competing paradigms are unable to talk to each other; they are in different conceptual worlds. Thus, as Kuhn himself says, it is important to remember what a paradigm debate is about.25 It is perhaps unfortunate that Kuhn’s warning has not always been heeded. As has been noted by others, social scientists have made erroneous use of Kuhn’s notion of ‘paradigm’.26 Indeed, recourse to the notion has become almost a ritual in certain disciplines, with the result that in a subject such as economics the term may well mean something rather different.27 What is perhaps unfortunate about this appropriation by other disciplines is that it can mask a methodological plurality that characterises the social and human sciences when compared to the natural sciences. This is not to suggest that there is a methodological unity among all scientists, but, in terms of schemes of intelligibility (see Chapter 2, section 6), the causal scheme tends to be the dominant one. In the social sciences there is a plurality of possible orientations or ‘programmes’, such as Marxism, psychoanalysis, behaviourism, structuralism, pragmatism, constructivism, rational choice theory and so on.28 And this plurality of programmes in turn brings into play its own dominant schemes of intelligibility.29 Moving from one programme to another, and (or) from one scheme of intelligibility to another, while perhaps permitting a change of viewpoint, or even ‘world view’, ought not to be seen as a ‘paradigm’ change or a ‘revolution’. For, as Jean-Michel Berthelot pointed out, the social sciences are of recent construction, in turn making them rather precarious in terms of Ibid, at 149–50. Ibid, at 150. 24 Ibid, at 181. 25 Ibid, at 156. 26 Nouvel (2006), at 843. ‘In highbrow commentary and lowbrow marketing speak’, Robert McCrum has written, ‘“paradigm shift” has become a cliche [sic] of social and political change’: The New Review (The Observer), 19 June 2016, at 37. McCrum lists Kuhn’s book as number 21 in the column ‘100 Best Nonfiction Books of All Time’. It has sold, it is stated, more than 1.4 million copies. 27 Nouvel (2006). 28 Berthelot (2006), at 381–2. 29 See generally Berthelot (2005). 22 23

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empirical and theoretical cumulative construction.30 Whether law falls within this category of social sciences is, it must be said at once, an issue in itself, at least when viewed from notions such as ‘paradigm’ and ‘methodological plurality’.31 There are, in short, a number of serious epistemological questions that need to be investigated before one can tackle the issue of ‘paradigms’ and methods in the discipline of law.

3.

EPISTEMOLOGICAL QUESTIONS

Bachelard and Kuhn were not the only figures to dominate the theory of scientific thought and method during the twentieth century. Karl Popper (1902–94) was, and remains, equally important in many respects, because he offered something of an alternative vision, even if it is one that does not necessarily contradict the rupture thesis.32 Popper was concerned not just with scientific method but also with what amounts to a scientific statement. This work is of relevance to jurists because if they are to commandeer the work of Kuhn for their own purposes, it raises the question as to whether legal assertions are scientific assertions.33 Are the assertions to be found in Goff and Jones’ The Law of Restitution scientific statements?34 Popper argued that a statement is scientific only if it can be falsified. The example that he himself used was the assertion that ‘all swans are white’.35 This, he argued, was a scientific assertion because it could be falsified by the appearance of a black swan. Now, it may be that this example is not such a happy one, since it does pose a question about what is meant by ‘swan’ – a black ‘swan’, it might be argued, is not a swan – but be that as it may, the underlying point that Popper made is a fundamental one. Can the assertion be tested? This question raises a number of epistemological issues, particularly for those working in the social sciences and humanities. Most natural scientists have as their object of research an objective phenomenon that ‘acts’ in a way that is generally seen as being quite independent from human behaviour. The scheme of intelligibility applied is normally a causal one in which the scientist attempts to construct a model which seeks not just to explain the causes of the

Berthelot (2006), at 382. And see also Berthelot (2005). See further Samuel (2008). 32 But cf Pheby (1988), at 22–53; Atias (2002), at 46–7. The general view is that Kuhn is offering an alternative vision of science to the one proposed by Popper in that this latter philosopher is proposing a linear history of science. 33 Rouvière (2014–15). 34 Goff & Jones (1966). 35 See generally Popper (1959). 30 31

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phenomenon under investigation but also to predict the future ‘behaviour’ (so to speak) of the phenomenon. Any such model can thus be tested by observing the phenomenon itself; if it behaves in the way predicted by the model or theory then this correspondence between theory (intellectus) and object (res) will go far in providing epistemological validity to the model itself. In other words, testability lies at the basis of what is called the correspondence validity thesis. One should perhaps add that the existence of objects independent of the intellectus is equally important when it comes to classifying such objects. The system of taxonomy is itself subject to continual testing in that if, for example, a new species of plant or animal is discovered that simply does not correspond, and cannot be made to correspond, with the categories employed in the taxonomical scheme, then this might well provoke an epistemological crisis. When one turns to the social sciences such testing, while on occasions feasible, often presents very serious problems. Take the example of crime: what are its causes? It would seem feasible at one level to say that a response to this question could be scientific, in that an assertion that, say, ‘unemployment’ is a major cause would appear statistically to be testable. However on closer examination there are serious difficulties. First, what does one actually mean by ‘crime’? Even if social scientists could agree on a definition, this only leads to a second problem. Merely that there might be a statistical correlation between unemployment and crime figures does not of itself prove a causal link, given the sheer complexity of causation in social relations and behaviour.36 Consequently, even if a regularity of correlation could be demonstrated, this does not exclude other causes, such as the importance of individual behaviour and (or) morality. In other words, testing a model relating to a social phenomenon becomes problematic because part of the phenomenon is human behaviour itself and this behaviour is extremely difficult, if not impossible, to model. As a physicist once observed, just think how difficult physics would be if particles could think.37 One response to these difficulties is to abandon the idea that one can find explanations in social science. All that one can hope for is an increasing understanding of society. In terms of schemes of intelligibility (see Chapter 2, section 6), one is substituting a hermeneutical scheme for a causal one and once one has done this the means of testing can no longer be correspondence,38 for hermeneutics is founded on interpretation rather than explanation. Admittedly distinguishing between these two notions is not always clear-cut – did not Sherlock Holmes interpret factual signs in order to produce his

Correlation is of course also a problem in the physical sciences. Ariely (2008), at 244 (quoting Murray Gell-Mann). 38 Thouard (2006). 36 37

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empirical theories?39 But once one is in the realm of hermeneutics it is arguable that one is no longer in the realm of science. The only way in which an interpretative statement can be epistemologically verified is by consensus among the interpretative community.40 This said, there is another epistemological possibility, and that is verification by reference to coherence.41 This third means of validating an assertion is associated primarily with mathematics, which is the one science that does not have as its object an external phenomenon. It is a system whose epistemological foundation is the coherence of the system itself, and thus a mathematical statement is valid if it contains no internal contradictions. Other disciplines have seen an epistemological possibility here. For example, in the discipline of theology, John Puddefoot has argued that the philosophy of mathematics takes one straight into the world of metaphysics, in turn provoking a reflection on nature and on the relationship between reality and theory.42 Because, he says, it is possible to construct a coherent mathematical theory without assuming any realities in the physical world to which the theory corresponds, it is equally possible to construct coherent theories without having to suppose the existence of objective realities. And it is this lesson that provides the basis for suggesting a similarity between mathematics and theology. As he asserts, mathematics may not have any reference to reality, but it nevertheless provides an incomparable means to understand, predict and control nature. One can, accordingly, construct any number of coherent theological theories that act as a means of talking about, or even describing, God even if these theories cannot be verified by correspondence with some external reality.43 Puddefoot does not deny that there are differences between the two discourses. But, he says, the two nevertheless pose the same fundamental question about the nature of the reality described by the discourse and about how their propositions can be tested.44 This reference to mathematics and epistemology raises another point that perhaps ought not to be examined in any depth here, since the emphasis is on scientific revolutions. Nevertheless, one criticism that was directed at Kuhn was that his vision of science was a relativistic one. Indeed, he himself was sceptical about the idea of ‘truth’. There is, he said, ‘no theory-independent way to reconstruct phrases like “really there”; the notion of a match between the ontology of a theory and its “real” counterpart in nature now seems to me

Agamben (2008), at 78. Soler (2000), at 44–5. 41 Ibid, at 44. 42 Puddefoot (2007), at 860. 43 Ibid. 44 Ibid. 39 40

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illusive in principle’.45 In fact, this scepticism about accessing reality does not necessarily imply relativism. Fiction theory – or, more precisely, the philosophy of ‘as if’ – is of relevance to this question of whether reality can be accessed directly by the intellectus. Hans Vaihinger (1852–1933) thought it could not and argued that all models and theories, in whatever discipline, were fictions whose value depended upon their usefulness.46 In arguing this, Vaihinger was not disputing the utility of testability or indeed correspondence, since this method would be useful in assessing the value of the model. The point that Vaihinger made was that we should regard them only ‘as if’ they were true, rather as a lawyer regards an adopted child ‘as if’ she is the natural child of the adoptive parents. Vaihinger’s thesis is by no means relativist since it does not claim that one model is ‘as good as’ another or that all models are the product of culture rather than nature. The claim is that reality cannot be accessed directly. Vaihinger, and others who subscribe to the philosophy of ‘as if’, base their argument on the fact that mathematics, perhaps the most useful model in the physical sciences, contains many fictions, such as infinity. How, then, can we get ‘right’ answers about the world from patently ‘wrong’ models? Or, put another way, how can one hope to attain the ‘truth’ via models that are patently false?47 Fictionalism is a question of an ‘epistemological attitude’.48 And so it is not an issue of reducing all models and theories to the same level, but of distinguishing between good and bad fictions in terms of their utility. If the model proves effective both in explaining a phenomenon and in predicting its future movements and (or) behaviour it simply does not matter whether it is ‘true’ or not.49 What matters is its utility. Kuhn’s historical thesis can, then, be associated with fiction (as if) theory – or, if one prefers it, anti-realist theory. This author is simply indicating how one set of models and theories (paradigm) is replaced by another, although, as has been seen, this replacement is drastic in the extent of the rupture between the old and the new paradigm.

4.

REALISM AND ANTI-REALISM

Kuhn himself did not use the term fiction, nor did he discuss Vaihinger, and so perhaps a more appropriate way of viewing Kuhn is as an anti-realist.

47 48 49 45 46

Kuhn (1970), at 206. See generally on Vaihinger: Bouriau (2013). Ibid, at 13. Ibid, at 119. Ibid, at 111.

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The dichotomy in science between realism and anti-realism has been well described by Adrian Currie: Realism in this context is understood in a particular way. Both realists and anti-realists agree on the past existing and on our having knowledge of it. They come apart on the nature of narrative events, that is, the aspects of the past that are highlighted as being significant in an historical narrative. For anti-realists, attributions of significance are the projections of historians, whereas for realists there is a mind-independent fact of the matter about historical significance; anti-realists think narrative structure is imposed on the world to make sense of it for us, whereas realists think narrative structure, in part, reflects how the world is.50

Later, Currie explains: As we’ve seen, anti-realism is, at base, the idea that narratives (or events in a narrative) are ‘projected onto’ the world: narrative structure is not part of nature. A realist about narrative will argue that at least some aspects of the world’s structure are captured by narratives.51

And he adds: To be clear: both realists and anti-realists agree that narratives are legitimate and important knowledge generating tools. The question turns on whether these tools are, as it were, purely cognitive; only working to make sense of an otherwise senseless world, or whether they additionally track real; features that the world has.52

Sometimes this dichotomy expresses itself in other ways. Is the world itself (res) chaotic, and it is only the mind (intellectus) that imposes structure? Are there such things as ‘truth’ and ‘reality’, or are there only mind-created representations which will allow access to any reality? Does physics describe something – ‘reality’ – of which we have no idea what it actually is? These questions do not necessarily imply that all scientific narratives are based upon fictions. But they are associated with Kuhn’s notion of a paradigm which is orientated more towards constructivism (anti-realism) than realism.53 In the social sciences the dichotomy between realism and anti-realism has proved particularly acute because the phenomena themselves are ambiguous when viewed through this prism. Are social facts things that exist independently of the beliefs, preferences and theories of those who are studying such facts? Can, for example, a causal scheme of intelligibility be applied to

Currie (2019), at 46. Ibid, at 50. 52 Ibid. 53 Teircelin (2006), at 938–9. 50 51

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social facts? Here one is faced with many difficulties, one of them being, of course, social facts themselves.54 What are they? Are social beliefs or social norms social facts that exist independently from humans themselves? Are they objective facts? It would seem that these issues have led to the abandonment of any strong notion of realism susceptible of an analysis through a causal scheme, thus profiting the anti-realists.55 It has also created a context in which the notion of ‘paradigm’ has flourished.56 As Jean-Michel Berthelot noted, contemporary epistemology, following Kuhn, often used the idea of ‘paradigm’ to explain the plurality of theories, models and programmes employed by social scientists.57 Economists, for example, talk of the ‘individualist paradigm’58 (see Chapter 2, section 3) and, indeed, this present work talks in terms of the ‘authority paradigm’ (Chapter 2, section 2). With regard to the social sciences as opposed to the natural sciences, it might therefore be better to understand the expression ‘paradigm’ in a less intense sense than Kuhn’s use of the term.59

5.

SOCIAL SCIENCE AND REVOLUTIONS

However, in adopting a non-Kuhnian meaning, there will be an impact on the associated Kuhnian term ‘revolution’. A change of paradigm in the natural sciences, it must be recalled, is so drastic that the new paradigm will be ‘incommensurable with the one [the scientist] had inhabited before’.60 A change of a social science paradigm might be much less drastic. Yet, have there been revolutions in the social sciences? One of the difficulties in posing this Kuhn question is that, as has been seen, the object of social science is not of the same nature as the object in the physical sciences. There is not the same relation between intellectus and res because attempting to model human behaviour is not the same as modelling an inert object or phenomenon. This means that at the level of schemes of intelligibility, a causal approach, which dominates in the physical sciences (for one is usually seeking to explain a phenomenon), functions, if at all, much more diffusely and often controversially in the social sciences, in turn generating recourse to other schemes of engagement. This suggests that the social sciences are characterised much less by dominating paradigms in the Kuhn sense of this term. Instead, as Jean-Michel Berthelot has asserted, there is a plurality of orientations and theories, each of which is Ogien (2006), at 964. Ibid. 56 Nouvel (2006), at 843. 57 Berthelot (2006), at 381. 58 See eg Leroux & Marciano (1998), at 114–17. 59 Berthelot (2001a), at 468­–9; Fekete (2021), at 9–30. 60 Kuhn (1970), at 112. 54 55

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incapable of acting as an exclusive framework of reference.61 It might therefore be better to talk in terms of ‘programmes’ rather than ‘paradigms’, since the latter suggests a particular world view which is singular, and seemingly one (while it dominates) that goes without saying.62 Discussing this question of paradigms in the discipline of anthropology, Gérard Lenclud is quite specific. There is no notion of a paradigm in the Kuhnian sense and thus there have been no scientific revolutions.63 In other words, the existence of paradigms logically implies the existence of scientific revolutions, in that such a revolution involves one paradigm replacing another. And such a change is not just a change of theory; the duck must become a rabbit.64 Lenclud asserts that this has simply never happened in anthropology because although there may be different traditions or schools within the discipline, one nevertheless talks the same language. Indeed, he goes on to say that his discipline, like that of history or sociology, is doomed to remain in a pre-paradigmatic stage or, following Michel Foucault, to remain on the threshold of positivism without ever reaching a stage of scientific formulisation.65 For Lenclud, then, the idea of scientific revolutions in the social sciences seems misplaced (see further Chapter 11, section 5). In fact, care must be taken not to extend Lenclud’s assertions to all social science disciplines inasmuch as it is logically possible that a discipline be governed by a paradigm without there having been any revolutions. Mention has been made elsewhere of the authority paradigm which, as will be suggested, dominates subjects such as theology and law (see Chapter 2, section 2). Where the object of the discipline is a text it may be that the schemes of intelligibility and the language employed belong to a disciplinary matrix which is shared by all participants within the discipline even if there is a plurality of theories and approaches within this matrix. Certainly there have been, and remain, a whole range of different schools and theories within the discipline of law, but, despite important differences between these theories, they may well all conform to, or operate within, the dominating authority. If the authority paradigm is finally discarded one might as a result be able to talk in terms of a Kuhnian revolution, but it is actually rather inconceivable that this would happen in that it is perhaps the authority paradigm that makes a great deal of headway in defining the very disciplines of theology and law. One is thus faced not just with questions of paradigms and disciplines; one is faced with fundamental epistemological questions about disciplines that have as their Berthelot (2006), at 381–2. Berthelot (2001a), at 468–70. 63 Lenclud (2009), at 359. 64 Ibid, at 360. 65 Ibid. 61 62

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object texts. How one engages with texts, which are themselves the very object of the discipline, is simply very different from how one engages with external physical phenomena. Indeed, tensions between fact and text actually form part of the epistemological debates that take place within disciplines such as history and sociology. In posing the question about scientific revolutions one is posing a question about the nature of disciplines themselves. Of course, texts play an important role in the physical sciences and are the means of confirming and transmitting the dominant paradigm that constitutes ‘normal science’. But, despite the postmodernist idea that all science is in the end une entreprise littéraire,66 the sciences are on the whole not engaged in a hermeneutical exercise. They are engaged in a causal one where epistemological validity depends principally on the extent to which a scientific assertion – or a theory or model – reflects the ‘behaviour’ of the external phenomenon that forms the object of the science. This is not to assert, it must be stressed, that science is about ‘truth’; indeed, as has been seen, Kuhn’s paradigms suggest that Vaihinger’s view of models and concepts is more convincing.67 Nor is it to assert that the whole practice of science is itself immune from sociological investigation (indeed, Kuhn’s book inspired a ‘new sociology of the sciences’).68 It is to argue that the physical sciences are attempting to make sense of facts even if these facts are to be understood only through constructed models (the facts do not ‘speak for themselves’).69 The social sciences are equally often attempting to engage with social facts. But every level of this enterprise is ‘plagued’ by a plurality of programmes, theories, models, concepts and taxonomies that create tensions not just between discipline frontiers but within the disciplines themselves. In the physical sciences one can talk of dominant paradigms, but in the social sciences and humanities one perhaps should talk in terms of dominant tensions. To have knowledge of sociology, for example, is to have knowledge of the epistemological tensions that underpin and characterise the discipline.

6.

LAW AS SCIENCE

Whatever the position within the social sciences in general, if Kuhn is to have any relevance to law as a discipline one of the first questions to ask is whether it is a science. Two separate questions need to be identified here. The first concerns law itself: is it a science? The second operates at a meta level: is there Discussed in Berthelot (2008), at 54. Or at least the ‘constructive’ character of scientific knowledge: Gingras (2017), at 111. 68 Gingras (2017), at 96. 69 Ibid, at 108. 66 67

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a science of law? With regard to the first question, if law is to be considered a science, what is the object of this science? One possible answer is to say that it is society as an empirical fact and in the past, as will be seen (see Chapter 8, section 6), political and social thinking was conducted through the language of law.70 With the development of new disciplines such as economics and sociology in the nineteenth century, legal thought lost this ‘scientific’ role; it became ‘cut off from the movers and the shakers of social science’.71 In the words of Donald Kelley, law was transcended by philosophy, subverted by economics, surpassed by anthropology and overpowered by sociology.72 Now isolated within the social sciences, the emphasis moved from law as a science to a science of law; law became the object of speculation by legal theorists. This speculation has taken two principal forms. There are theories about the nature of law itself and there are theories, or at least debates, about legal taxonomy and the various categories that make up the taxonomical scheme. These theories, at both levels, will emerge more clearly in the chapters examining the history of legal knowledge and reasoning. But something more needs to be said here about legal taxonomy, since this is a key means by which law as an object can be discussed using the apparent scientific precision associated with disciplines such as biology. As a work on the theory of art notes about art: In the same way as genus and species in biology have their own characteristics that can be described, so the genus (genos) and species (eidè) in literature have theirs which allow them to be recognised. The method of classification adopted in biology can then serve here also to distinguish in narrative genre a specie [such as] ‘tragedy’. This particular specie is used here only as a paradigm for all the other species and, finally for the genus itself, namely that of fiction.73

Peter Birks adopted the same approach for legal taxonomy and indeed seemed to regard what he was doing as a scientific exercise, inasmuch as he openly compared Gaius to Darwin.74 There are of course difficulties with this comparison,75 but Birks did try to give his asserted scheme an empirical foundation when he linked the Roman legal categories to social fact via the notion of a ‘causative event’ (see further Chapter 2, section 5). The key question, then, is whether this taxonomy proposed by Birks is ‘scientific’ within the context of Kuhn’s historical account of science. Now, if one adopts Gilles-Gaston Granger’s notion of what might be called the scientific vision (visée), there are 72 73 74 75 70 71

See generally Kelley (1990). Ibid, at 253. Ibid, at 252–75. Cauquelin (2010), at 38–9. Birks (1997). Samuel (2000).

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a number of real difficulties in asserting that the legal taxonomist is indulging in a scientific exercise.76 The first characteristic proposed by Granger is that the scientific vision is targeted on reality.77 Of course, he says, the notion of reality is itself an extremely difficult one and cannot be defined in advance. Indeed, the actual object of scientific investigations is not reality itself but representations of it. Nevertheless, such representations are always orientated towards a description of the real and while the representations themselves may be the product of the imagination, their aim and scope is always centred on the res as something descriptively existing. Such descriptions must, in short, be distinguished from fantasies. The problem with the legal institutional scheme is that the object of, say, contract or delict (tort) is at best ambiguous. Birks suggests that the focus should be on the ‘causative event’, but such an ‘event’ itself is completely elusive in any descriptive sense and is thus likely to owe more to the imagination (fantasy).78 This point needs some developing. Professor Marie-Laure Mathieu, in her book on the representations of legal thought, devotes a section to what she calls the map and the territory.79 The map is not the territory, she explains, just as words are not the real objects they describe.80 However, as she goes on to say, the discourse of lawyers tends to conflate the two, rather in the manner of Magritte’s painting La trahison des images, which depicts a painting of a pipe under which is the statement ceci n’est pas une pipe.81 This prompts Professor Mathieu to ask ‘if there exists a “true” law?’ One might start with a particular legislative text, she says, but where is the ‘true’ law contained in this text to be found? Is it in the judge's judgment on it or in the explanation provided by la doctrine?82 Professor Mathieu is not the only one to make this point about the existence of law. Professors Forray and Pimont assert that every attempt to ‘describe’ a law, or the law, ends up by transforming it in some way or other.83 How does this happen? They argue that it ‘is no longer a description, but an operation through which what is described changes form by the fact itself

Granger (1995), at 45–52. Ibid, at 45–6. 78 It is of course possible in any situation to pick out ‘the principal causative event’ and lawyers (and others) do this all the time. But this is, of course, a fictional construction in the Vaihinger ‘as if’ sense and is not any serious attempt to model a scientific ‘reality’. 79 Mathieu (2014), at 177–236. 80 Ibid, at 177. 81 Ibid, at 186. 82 Ibid, at 190, 201. 83 Forray & Pimont (2017). 76 77

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of the operation which takes it for its object’.84 The map and the territory is analogous in some ways to the discourse (intellectus) and object-of-discourse (res) structure. However while the geographical map tries to reflect the external object (the territory) as faithfully as it can, the discourse on law modifies the object itself. The ‘map’ becomes the ‘territory’. As Professors Forray and Pimont put it, the ‘law does not have a real existence outside of the text’.85 Or, as Professor Mathieu says, the ‘repetition of the same description of the law, in the discourse of lawyers, ends up by creating “the truth”’.86 This problem leads one on to the second characteristic of science: a scientific model is one that aims to describe and explain an objective (real) phenomenon (object). At first sight the taxonomical scheme that has dominated legal thinking – namely persons, things and actions (see Chapter 3, section 3) – seems to be rooted in reality. Persons, things and dispute resolutions procedures (courts, officials and the like) appear to exist. However, when one actually examines the case law and legislation – or indeed Gaius’ Institutes (see Chapter 3, sections 3 and 4) – it soon becomes evident that all three institutions are often describing unreal objects such as the legal person (universitas) and the intangible thing (res incorporalis). Birks himself tried to expel remedies (actions) from the legal scheme and replace them with the concept of a right.87 And so what soon becomes evident is that the taxonomical model is not so much attempting to describe or explain some independent object but to create a parallel world which itself becomes the ‘object’ of the ‘science’.88 It is not a model whose aim is to facilitate explanation and understanding; it is a model that creates its own things (for example, the moment a town is granted an action it becomes in effect a persona). The principle of existence resides in the legal scheme and not in the thing itself.89 For instance, the causative event that connects the category of delict or tort to social fact is the notion of a wrong; it is a ‘liability creating event’.90 But what is a ‘wrong’? According to Eric Descheemaeker, it is ‘the violation of a right, and therefore a breach of duty’.91 This of course raises a question about a ‘right’ and a ‘duty’. Neither of these concepts have any relation whatsoever to an existing res; they are simply creations of a legal scheme of thought. It is like asking if it is true that X is an Aries person. None of this is to imply that this

86 87 88 89 90 91 84 85

Ibid, at 43. Ibid, at 106. Mathieu (2014), at 235 (emphasis in original). Birks (2000). Atias (1985), at 43. Granger (1997), at 22. Birks (1997), at 26. Descheemaeker (2009), at 17 (emphasis in the original).

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kind of taxonomical thinking lacks social value. What is at issue here is just whether or not it is a scientific scheme in the Granger sense that it is a scheme that is attempting a description of the real.92 Again, this science and its object needs a little more development. The discourse–object debate is reflected to some extent in the dichotomy between law as a science and the science of law. If law is indeed a science (as civil lawyers have traditionally thought, as we shall see in later chapters), what is its object? One historical view is that the object of law as a science is society itself but this thesis lost out, in the nineteenth century, to the new social scientific disciplines such as sociology and psychology and to the increasing dominance of economics. This reinvigorated the question about the object of law as a science. Is it inward looking? That is to say, does the scientific aspect gain its epistemological validity from correspondence with some independent object or, like mathematics, does it arise only out of its own coherence? The science of law question is rather different in that it takes as its object law itself. Here it is acting, as Professor Mathieu suggests, as a map of the map (a kind of mappa mappae, one might say). The difficulty, of course, is that if law does not have a real existence outside the text, then law becomes the object of its own science. One is producing a map (science, theory or even model) of a map whose existence consists entirely of a set of concepts and categories, plus a terminology, which have no real existence except in the map itself. The science or theory ends up, if not creating its object, then being completely absorbed by it. Each theory attempts to establish itself as separate from its object (law) but the gap between theory (science) and object (law) immediately collapses as the theory gets completely absorbed by its object. As we shall see, the increasing emphasis in civil law history on structural formalism – or systematisation – resulted in a ‘reality’ that is rooted entirely in a theory of systems and where ‘existence’ is a matter of structural form.93 This form can be represented by metaphorical images – such as a pyramid of norms or a visual model of jural relations – which become mental structures not just representing law as object but becoming the object itself. The idea of a mappa mappae loses itself within its own structural forms and metaphorical images and, as a result, loses credibility as a science.

92 This is bound up with the whole problem of the representation of facts in law, an issue that needs separate treatment: see Samuel (2016a). 93 See Forray & Pimont (2017), at 69.

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7. VALIDATION The third characteristic of science is the requirement of criteria of validation. Knowledge is only scientific if it results from processes and (or) methods that can validate the knowledge as reliable.94 This may vary from science to science, and so, for example, the criterion of evaluation of a mathematical assertion will be different from the one governing assertions made in physics or in biology. Leaving aside pure mathematics, one major criterion of validation is accurate predictions concerning the object of the science. In other words, correspondence between model (or assertion) and object may go a long way in giving the model or assertion epistemological respectability. Now, it would be idle to say that law is not about predictability. It is a fundamental characteristic of Western legal systems, certainly since Hugues Doneau (1527–91) (see Chapter 5, section 5), that the law should be predictable so that people know their rights before embarking (or not) on legal actions.95 However, such predictability is not located in any actual causal relation between science and external object as such. The fact that the Supreme Court might decide tomorrow that Lord Haldane in Sinclair v Brougham was right, and that English law recognises, after all, only two categories of in personam proceedings,96 would not undermine, epistemologically speaking, the thesis advanced by Birks and others that there ought to be three categories. Birks’ assertion stands or falls by reference to the rationality of his taxonomical scheme. Of course, the temptation is to think that law is scientific because it strives to be a fully coherent system like mathematics. The problem is that the scheme can never be fully coherent, despite efforts by jurists past and present. It is impossible, because the categories employed in any legal taxonomical scheme cannot be exclusive. Social fact simply does not present itself ‘neatly packaged into pre-established categories’97 that are watertight in terms of internal coherence. Many situations can be classified under different categories depending upon the focal point chosen by the classifier. Thus a false statement about another person which causes the latter to suffer serious financial loss can be classified according to the focal points of ‘reputation’ or of ‘interest’ (financial) or of the behaviour (culpability) of the writer. A person injured by a defective product purchased for her by a friend can be classified under ‘contract’ (privity of contract and thus no action, at

94 This of course was one of the key factors in Kelsen’s positivism: see Jones (1940), at 227. 95 See H Doneau, Commentarii de juri civilis, Book I, Chap 1, § 2. 96 Sinclair v Brougham [1914] AC 398, at 415. 97 Webb (2009), at 228.

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least before 1999) or ‘negligence’ (duty of care to consumers). One might try to argue that the false statement should be categorised only under ‘reputation’ for the sake of coherence, but such an argument is based on a value judgement made by the person asserting the argument. In other words, coherence in law is itself a value judgement, and its absence does not of itself undermine the validity of any taxonomical scheme in law. For example, the Roman jurists seemed happy on occasion to leave problems open and unanswered in any definite way;98 and they certainly seemed to be able to build a viable law of property founded on ownership without ever (it would seem) defining precisely this concept.99 And indeed the development of the common law, in its early centuries at least, certainly seemed to be achieved free of any clear internal systematisation.100 In contrast, in mathematics the absence of coherence would render the whole discipline at best unscientific, if not completely valueless. In mathematics coherence is not a value judgement but an integral part of the scheme itself. One can conclude, therefore, that law is not really a scientific discipline. Its assertions cannot be tested or falsified against a specific external object and its internal structure of concepts and categories is too fluid to be able to support a coherence that would render the subject open to computerisation in the same way as mathematics can be computerised. Law’s own long history seems to confirm, as we shall see, the weaknesses in coherence. Despite the efforts of the humanists, the jurists of the usus modernus pandectarum and the Pandectists, the idea of law as a model of axioms from which solutions to any legal problem can be obtained entirely through deductive method has proved an illusion. It might work where the legal rule is founded on mathematics (a speed restriction rule, for example), but a rule that contracts must be performed in good faith is simply one of value judgement theory. Strict coherence may or may not be desirable in law, and no doubt a complete lack of coherence would make the system unworkable. But the discipline does not depend upon watertight and exclusive categories or upon concepts that can be precisely defined.101 Indeed, the Roman jurists famously thought that definitions were dangerous.102 Another way of expressing this is to say, as Christian Atias has done, that law is too open to ideological influences to be a science.103

See eg D.9.2.11pr. It was Bartolus (1313–57) who provided the first clear definition of ownership: In primam Digesti Novi partem Commentaria, ad D.42.2.17.1 no 4. 100 See generally Milsom (1981). See also the judgment of Fitzgibbon J in Thomas Shipsey v The British and South American Steam Navigation Co Ltd [1936] IR 65. 101 A point well made by Waddams (2003). 102 D.50.17.202. 103 Atias (1985), at 201. 98 99

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LAW AS SOCIAL SCIENCE

If law is not a science in the natural science sense, is it a social science? And, if so, does Kuhn’s thesis have any relevance to the social sciences? To take the first question first: the relationship between law and the social sciences has recently been the subject of some general reflection by English legal academics and one overwhelming conclusion seems to be that English academic law is now firmly embedded in a socio-legal culture.104 Institutionally, this interrelationship of disciplines is often reflected in the fact that a number of university law departments are incorporated into faculties of social science. And of course a percentage of the members of all law departments are engaged in work that sociologists would have no difficulty in accepting as being fully fledged social science research (as opposed to traditional ‘doctrinal’ or ‘black letter’ scholarship).105 Even within the realm of legal practice, a socio-legal orientation manifests itself in a number of ways. Policy and axiological arguments have largely replaced a ‘scientific’ approach based on formalist thinking, if not syllogistic logic, in the judgments handed down from English appeal courts and many doctrinal textbooks and casebooks supplement discussion of the positive law with references to, for example, the law and economics school. Lawyers, or academic lawyers at least, are, it would seem, all socio-legal now.106 From a comparative law perspective this socio-legal orientation is interesting, particularly when considered in relation to the position in France. Over the Channel the orientation within university law faculties is very different, inasmuch as socio-legal work is not only largely absent but actually career-threatening, at least for those at the early stage of their academic careers. As two French authors (both law professors) point out, la doctrine has as its mission only to comment upon the positive law, and in the manner that is restricted in its methodological approach.107 This approach views law uniquely from its interior,108 within which the aim is to analyse and to explain in a coherent and logical manner a legal text or court decision and, continuing in this same methodological mode, to guide the reader towards future outcomes with respect to the positive law under consideration.109 One studies the law using analysis and synthesis in as strict a manner as the pharmaceutical See in particular Cownie (2004); McCrudden (2006). On ‘black-letter’ or ‘doctrinal’ law see Vick (2004) at 178–­9. The term ‘black ­ letter’ law seems now to have received formal judicial recognition: In re Taylor (A Bankrupt) [2007] 2 WLR 148 at para 46. 106 McCrudden (2006). 107 Jestaz & Jamin (2004), at 171­–2. 108 Ibid, at 172. 109 Ibid, at 231. 104 105

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chemist studies the body.110 A book on the sociology of law will thus not form part of la doctrine.111 This ‘scientific’ approach to law – and it must be stressed that in France, as in Germany, law professors are seen as having une vocation scientifique112 – is not of course unknown in the common law world.113 Equally, in the civil law world it must not necessarily be assumed that practitioners and judges share the same restricted viewpoint as the writers of doctrine, at least when it comes to deciding cases.114 Indeed, even the French doctrinal writers are happy to abandon the logical for the purely axiological on occasions.115 But this comparative aspect to the relationship between law and the social sciences is of some importance inasmuch as it must be remembered that any attempt by theorists to isolate law as an autonomous discipline will always be plagued by a certain lack of epistemological symmetry between legal systems, even those within the European tradition. To what extent does legal knowledge incorporate what might be termed, by a French doctrinal writer, as ‘external’ views of law? Indeed, to what extent do the external views of law themselves feed back into an understanding of what it is to have legal knowledge? In addition, the relationship between social scientists and lawyers will probably vary according to whether the frontier between the legal and the socio-legal is a rigidly defined one (as for example in the French university world) or more fluid, as is the case now within the Anglo-American tradition.116 In short, an epistemological model of law formulated by a jurist from the civilian tradition might not match one conceived by a common lawyer.117 Consequently, a reservation must be made at this introductory stage with respect to the question about the extent to which social science theory and method might contribute to the isolation of

Ibid, at 160. Ibid, at 171. 112 Ibid, at 163. 113 See Gray & Gray (2003). And see generally Cownie (2004). Vick briefly traces the history of law as an academic discipline in the common law world: see Vick (2004), at 174–81. However, Vick makes the curious comment that ‘the professional orientation of legal education on the Continent may not be as strong as it is in the United Kingdom’ (at 176). It is respectfully submitted that anyone who has spent time in a French law faculty might not agree with this comment. 114 See Lasser (2004). 115 See Jestaz & Jamin (2004), at 242. 116 Cownie (2004), at 54–72. 117 Although interestingly one leading epistemological investigation undertaken by a French law professor undoubtedly has relevancy for common lawyers: Atias (1994). However just what impact, if any, Professor Atias’ innovative books on legal epistemology have had on French doctrinal thinking is another question. 110 111

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law as an autonomous discipline. It is always dangerous to assume that such models are transferable between legal cultures.118 In fact, this problem of transferability between systems raises in itself very serious issues for the comparatist. The theorist who asserts, for example, that all legal systems are reducible to a pyramid of norms courts the danger of indulging in legal imperialism, as does the theorist who might claim that all judges are like authors writing a chain novel.119 To assert that any theory is the product of the culture in which it has been fashioned is one that cannot be falsified even if it cannot be proved. What is at issue is what might be termed a paradigm debate (using paradigm here in its social science sense). Are there assertions about law that can transcend cultures – the nature or science paradigm – or are all such assertions entirely the product of the society in which they have been formulated, with no ‘entity’ capable of existing over and above society (the cultural paradigm)?120 If one is to try to ‘get at’ law’s boundaries121 it is necessary to formulate a model that is able to embrace these, and other, paradigm oppositions. This is the reason why it might be more valuable to move away from theories that take as their object rules, norms and (or) concepts – together with any systems or structures organising these rules, norms or concepts – and to focus upon those working within the legal professions and legal academia and examine the methods that they employ. In other words, epistemology should embrace not only the law but equally the law maker. In doing this it must be stressed at once that the objective is not to fashion yet another realist thesis. The objective is to focus less on action and more on the reasoning processes, schemes of intelligibility and paradigm orientations used by lawyers and jurists, and to examine these processes and grilles de lecture in relation to the objects upon which they are employed. Method, in other words, is to be understood in its epistemological sense rather than in the more practical sense of, say, what lawyers do when they undertake legal research or write reports, theses and judgments. It is in understanding this epistemological aspect of method that the social sciences have a contribution to make. However, there are a number of difficulties that present themselves when one looks ‘beyond’ the discipline of law, so to speak. First there is the distinction, made by many who embark upon socio-legal studies, between an ‘internal’ and ‘external’ view of law.122 This distinction is perfectly understandable and often very helpful, but it tends to suggest that there are methodological differences between those scholars 120 121 122 118 119

See generally Legrand (2015). Bell (2016). Samuel (2014), at 159–63. Cf Nelkin (2006). See eg McCrudden (2006), at 633.

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operating, in a doctrinal function, within the discipline of law and those academics outside of the discipline who observe law from an ‘external’ viewpoint. If the social sciences in general are to contribute to a methodological and epistemological understanding of law and its boundaries the distinction is possibly unhelpful, for schemes of intelligibility and paradigms employed by social science theorists are as much a part of legal reasoning as sociological method.123 A second difficulty is to be found in an apparent paradox arising out of a collected work on social science epistemology published in 2001 and edited by the late French sociologist Jean-Michel Berthelot.124 In this work there are contributions from many of the main social science disciplines but no chapter on law. This exclusion was not an oversight and thus Professor Berthelot spends time explaining in the preface why he decided against including a contribution from law. This is a discipline, he argued, that concerns itself with normative judgements and not with problematising the different forms of interaction between ‘actors’.125 It is of course possible to dispute this exclusion,126 but for the purposes of the present investigation it might be more profitable to focus on an apparent paradox that arises out of this exclusion, which is this. It would appear that law as a discipline has little to contribute to an understanding of epistemology in the social sciences. Yet the schemes of intelligibility and paradigms (in fact Berthelot prefers the term ‘programmes’ to paradigms) that the French professor identifies, and discusses in one of his own contributions,127 not only are of the utmost relevance to law; they are also methodologies whose foundations were developed, according to Donald Kelley, to a high level of sophistication by jurists in the centuries before sociology was constructed as a discipline.128 What is seemingly paradoxical is that the history of legal thought in Europe provides the historical site in which it becomes possible to understand the reasoning methods, schemes of intelligibility and programmes or paradigms that Professor Berthelot identifies as being so central to social science epistemology. Indeed, the paradox is expressly evident in the collection itself, inasmuch as the contribution on history starts with a lengthy reference to the well-known American legal historian Donald Kelley.129

See generally Samuel (2018). Berthelot (2001). 125 Berthelot, Avant-propos, in Berthelot (2001), at 12. 126 See Samuel (2008). 127 Berthelot (2001b). 128 See Kelley (1990). On the construction of sociology as a discipline see Berthelot (2005). 129 Revel (2001), at 25. Revel quotes from Kelley (1970), at 2. 123 124

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What is important, however, about this paradox is the insight that it provides into the discipline of law. If the schemes and paradigms are as central to law as to any other social science it might become possible to use these schemes and paradigms as a means of identifying law as a discipline independent of the other social science disciplines. Moreover, such a possibility perhaps allows one to effect a compromise between a realist and a conceptual approach; one might be able to isolate law in terms both of what the actors in law do and of the conceptual apparatus that they employ. Of course, this is not to imply that theorists have not already investigated this route into legal knowledge and theory. It is arguable that Ronald Dworkin’s work effects a compromise between actors (judges) and conceptualism (hermeneutical and structural schemes).130 Yet it is equally arguable that there is more to legal epistemology than merely interpretation (hermeneutical scheme); the way facts, society, economic models and the like are constructed by jurists involves the use of other schemes such as causality, structuralism and dialectics, themselves embedded in a paradigm orientation (see Chapter 2). This is the contribution that social science epistemology can make to an understanding of law as a discipline. If law, in its turn, can make a contribution to social science thinking itself, then few could argue that law is not a social science. But all of this, arguably, is dependent not just on law as a body of synchronic knowledge; it is dependent upon an historical understanding of the discipline which will indicate both how it is constructed conceptually and how the various schemes of intelligibility have been fundamental to an understanding of the methodological changes during this history.

9.

SCIENCE AND PROGRESS

Another notion of importance in the understanding of Kuhn’s thesis is the idea of progress in science. Kuhn felt that, having set out his historical theory, there remained a special problem. As he put it: If this description has at all caught the essential structure of a science’s continuing evolution, it will have simultaneously have posed a special problem: Why should the enterprise sketched out above move steadily ahead in ways that, say, art, political theory, or philosophy does not? Why is progress a perquisite reserved almost exclusively for the activities we call science?131

One might note that Kuhn seemed to be implying that disciplines such as political theory and philosophy have not been subjects in which progression See eg Dworkin (1986). Kuhn (1970), at 160.

130 131

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was an element, and this raises a question about law. Is this a subject that has progressed over the past two millennia? In fact Kuhn was not dismissive, with regard to progress, of subjects such as art, philosophy and theology. He thought much depended on what one meant by progress and concluded that such creative fields do display progress when viewed from the community in which such disciplines operated.132 ‘The theologian who articulates dogma or the philosopher who refines the Kantian imperatives’, he wrote, ‘contributes to progress, if only to that of the group that shares his premises’.133 And he continued: No creative school recognizes a category of work that is, on the one hand, a creative success, but is not, on the other, an addition to the collective achievement of the group. If we doubt, as many do, that non-scientific fields make progress, that cannot be because individual schools make none. Rather, it must be because there are always competing schools, each of which constantly questions the very foundation of the others. The man who argues that philosophy, for example, has made no progress emphasizes that there are still Aristotelians, not that Aristotelianism has failed to progress.134

It is this idea of competing schools that is of importance in understanding the notion of progress. Kuhn thought that scientific progress was not different in kind from progress in other fields, ‘but the absence at most times of competing schools that question each other’s aims and standards makes the progress of a normal-scientific community far easier to see’.135 One key feature of science that helps maintain this unity among scientists, thought Kuhn, was the textbook. ‘Until the very last stages in the education of a scientist’, wrote Kuhn, ‘textbooks are systematically substituted for the creative scientific literature that made them possible’.136 These textbooks of course confirmed the paradigm in which the student of science was operating, and such a paradigm equally confirmed the synchronic epistemology. Why study the works of old scientists and philosophers of science when their ‘work is recapitulated in a far briefer, more precise, and more systematic form in a number of up-to-date textbooks?’137 What this approach produced, thought Kuhn, was ‘a scientific community that is an immensely efficient instrument for solving the problems or puzzles that its paradigms define’.138 Inevitably it

Ibid, at 162. Ibid. 134 Ibid, at 162–3. 135 Ibid, at 163. 136 Ibid, at 165. 137 Ibid. 138 Ibid, at 166. 132 133

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is the solving of these puzzles and problems in science that comes to be seen as progress. On a more general level, when paradigm change is associated with a revolution, and revolutions imply a victory for one side or the other, what ‘group [will] ever say that the result of its victory has been something less than progress?’139 The relevance of these observations for historical jurisprudence seem inescapable. Saying this is not to imply that Kuhn’s view of progress in science is not open to challenge and criticism. Yet what Kuhn said about operating within a particular paradigm and the role of textbooks in both maintaining this paradigm and in surpassing the relevance of the works of older jurists seems to have an important resonance to anyone sensitive to legal epistemology. Of course, the puzzles solved in law are not the same as puzzles solved in science, and this probably impacts in a major way upon the issue of progress in legal history. No doubt, as we shall see, there are legal theorists who produce work that seems more convincing than the work of some of their predecessors and, as Kuhn indicated, this could well be seen as progress within the legal community. Yet if the history of legal thinking is supressed by a textbook and synchronic tradition in law it is actually difficult to assess whether a new theory is actually progress in relation to what has gone before. The same might be said about some new legal precedent or textbook that appears to formulate a change of direction in the law. But what if this change of direction is not actually a new idea at all? What if it is an idea that is to be found among the Roman jurists or the Renaissance lawyers? Is this really progress?

10.

CONCLUDING REMARK

The material covered in this chapter may appear, if not complex, then somewhat removed from what many might consider to be legal history and (or) historical jurisprudence material. However, a key thinker in this present rethinking project is Thomas Kuhn and it is vital that his central book on scientific revolutions be examined in some detail.140 Moreover, the epistemological context in which he fashioned his historical thesis needs explanation, as do some of the more general epistemological issues associated with the social sciences. What has not yet been considered is whether there have been scientific revolutions within the history of law as a discipline, even if some hints have been aired. Such a consideration will be properly feasible only after a detailed examination of the history of legal ‘science’.

Ibid. A position seemingly supported by Fekete (2021), although this author is discussing the history of comparative law rather than the history of law. 139 140

2. Schemes and paradigm orientations All historical work raises methodological, epistemological and historiographical issues. What kind of intellectual frameworks – or grilles de lecture – are to be used to understand the past? And do different frameworks, or grilles, result in different kinds of historical knowledge? We have seen how the notion of a paradigm has played a central role in the history of science, but what about history in general? The purpose of this second chapter is to examine some of these questions.

1. INTRODUCTION There is no doubt that the subject category of ‘jurisprudence’ has as one of its aims to provide epistemological insights into law. Where, however, the category has proved less helpful is in respect of legal history, comparative legal history and comparative law itself. The problem that arises here is that the emphasis in jurisprudence has tended to be on the fashioning of universal legal theories, whereas such a preoccupation is dangerous with regard both to legal history and to comparative law. When historians and comparatists ask the question ‘what is “law”’ they are doing so in the context of a particular legal culture or tradition and the presumption is that each culture or tradition has its own epistemological paradigm. In comparative law the emphasis is not on a universalist definition of law, because such definitions run the risk not only of masking the particularities of individual legal cultures but of imposing themselves on a tradition which is actually very different from the ones from which the universal definitions have been fashioned. In other words, there is the danger of legal imperialism. There is an analogous problem with legal history. Imposing on the past a modern definition of law is, self-evidently, to impose the present on the past. Even within Europe this is a problem. Can, or should, the institutional categories of the civil law (see Chapter 3, section 3 and Chapter 8, section 2) be imposed on the common law, particularly on the common law of the past? Some writers seem to regard such an institutional system as a form of transnational science and thus of as much relevance to English law as to the German or French systems.1 Other writers are far more



1

See eg Birks (1997). 34

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sceptical: the common law and its past has a completely different epistemological mentality.2 Or take norm theory: can all legal systems be reduced to a pyramid of descending norms or do some traditions, such as the common law, simply not think in these terms? Can norm theory be applied to the medieval jurists or to the Roman lawyers? These kinds of question have, over the past couple of decades, been giving rise to a body of literature that is generally regarded as falling not within jurisprudence, but within the category of general theory of comparative law and legal historiography. When these problems are combined with others faced by historians and comparatists – in particular, problems of methodology – one soon finds that the legal theory and philosophy (jurisprudence) literature is not that helpful. As Mark van Hoecke indicates, many of the methodological difficulties encountered in comparative law are essentially linked to a number of epistemological problems concerning the technique of comparison, the description of law and the ‘objectivity’ of facts.3 Legal history faces similar problems. Both legal history and comparative law, in short, have, or should have, forced jurists working within these areas to think about legal epistemology. In fact, if one had to identify a key difference between legal theory and philosophy on the one hand and legal epistemology on the other, it would be the notion of disagreement. Certainly there are disagreements – serious disagreements – between legal theorists and philosophers but these disagreements are in one sense just a by-product in the struggle for universal dominance. Most legal theorists are asserting what they consider to be a universal ‘truth’, that is to say, a theoretical position that is superior to all the other theory assertions. Epistemologists no doubt might indulge in the same kind of exercise, but the essence of the subject – at least with regard to the social sciences – is to be found in the idea that there are different kinds of knowledge depending upon the level of observation and the methods, schemes and paradigms brought into play.4 Legal epistemology ought, in this respect, to be no different. The subject is not primarily about claiming whether one particular assertion about knowledge is necessarily superior to another, although there may be occasions where such an assertion could well be appropriate. Legal epistemology is about the different kinds of knowledge that are in play in the debates about knowledge theories. In addition to examining the debates and disputes between legal theorists, the epistemologist in law ought to be considering some more general knowl-

4 2 3

See eg Hackney (1997). Van Hoecke (2004). See eg Desjeux (2004).

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edge issues. What is the nature of a discipline?5 Is the knowledge within a discipline cumulative?6 Have there been scientific revolutions within this or that discipline? How should assertions in law be validated?7 Is law a fiction?8 These questions are not exhaustive, but they represent some of the more important issues that have been posed within the social and human sciences more generally. It should be evident, then, that legal epistemology is by its very nature interdisciplinary. This is not to assert, it must be said at once, that there are not epistemological theories that are, for want of a better term, internal to law. Hans Kelsen’s pure theory was an attempt to provide such an epistemological model; its purity is to be found in its effort to separate law from all other social science knowledge and social norms.9 However, in asserting such a singular universalist theory of law and legal knowledge, it is arguable that Kelsen was more of a legal theorist and philosopher than an epistemologist.10 He was not studying the various principles, concepts, notions and methods used by jurists in any critical and descriptive sense.11 He was more of an idealist. For example, there is no place in his pyramid of norms for the dichotomy between public and private law, yet these two categories have been, and remain, fundamental to legal thought (see below, section 3). A descriptive epistemology of law cannot, in other words, ignore notions that have been and are used by lawyers in such a conceptual and instrumental way. Nevertheless, this reference to Kelsen’s theory indicates how difficult it is on occasion to separate epistemology from philosophy. One reason for this difficulty is the flexibility of this latter category, which can easily be expanded to embrace questions about the nature and validity of knowledge. Consequently, as a French epistemologist noted, it has not been easy to distinguish between epistemology and the philosophy of science.12 The difference, according to this author, seems to be found in the idea of a linear progress as opposed to a circular progress, this latter being a progrès réflexif on the part of those actually involved with the practice of science.13 In other words, epistemology is a reflection on the part of practitioners rather than pure theorists, and this in turn is a useful reminder that not all meta-science is necessarily philosophical.14

7 8 9 5 6

12 13 14 10 11

Boutier, Passeron & Revel (2006). Walliser (2009); Samuel (2012). Soler (2000), at 43–5. See Samuel (2015). Jones (1940), at 222–4. Troper (2003), at 38. Cf Atias (1994). Blanché (1983), at 16–20. Ibid, at 17. Ibid, at 19, 120.

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Within the discipline of law there has been a marked shift in the content of the common law jurisprudence course during the twentieth century which perhaps indicated a rethinking of the scope of what amounts to legal philosophy. In the earlier part of the century there was considerable emphasis on legal concepts such as ownership, possession, contract, personality and so on, but this gradually disappeared from the syllabus during the second half.15 The emphasis today is on philosophical theories, with considerable space being devoted, first, to particular individual philosophers such as Kelsen, Hart and Dworkin and second, to certain Anglo-American schools such as realism, critical legal studies and feminist jurisprudence. This reorientation was no doubt partly caused by a lack of space given the enormous expansion of schools of thought during the previous century, but it is still legitimate to ask if this practical reason has not in its wake provoked a rethinking of what amounts to legal philosophy. Reflections upon legal concepts such as ownership and contract have generated their own categories such as the philosophy or theory of property, of contract, of tort and of equity. Perhaps, then, one can reach an analogous conclusion to the one suggested by Robert Blanché: epistemology inhabits an intermediate zone between the practice of science and philosophy.16

2.

AUTHORITY PARADIGM

It was noted in Chapter 1 that it is dangerous to transplant the notion of a paradigm from the natural to the social sciences. Nevertheless, if one employs the term in a weaker, social science, sense, it can be a useful way to express orientations operating at a higher and more contextual level than schemes of intelligibility or grilles de lecture (see below, section 6). And one fundamental orientation in relation to legal knowledge is the authority paradigm. This notion of an authority paradigm is founded on the idea that practitioners and academics working within certain disciplines, such as theology and law, are governed ultimately not by enquiry – the results of which may in the end force those working within the enquiry paradigm to abandon their theories in the face of empirical reality (on which of course see Thomas Kuhn: Chapter 1 of this volume) – but by textual authority. The foundational texts in theology and in law can never be questioned in terms of their authority, and this limits quite severely not just the scope for scientific enquiry but also even the scope of hermeneutical investigation.17 Many legal philosophers, especially those

15 One of the last jurisprudence textbooks in England reflecting the older syllabus was Dias (1985). 16 Blanché (1983), at 20. 17 See also Samuel (2008).

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who have sought to identify the source of legal rules and to separate them from other norms, could be said to be working within the authority paradigm. Consequently it is necessary to distinguish between different categories of legal philosophers and theorists. There are those working within the authority paradigm and there are those working outside of it; equally, there is a third category of theorist who is working partly within and partly outside such a paradigm. Those theorists working outside of the paradigm are unlikely to be quoted in textbooks on positive law or in judgments – one thinks for example of John Griffith’s book on the politics of the judiciary18 – while those within the paradigm, Herbert Hart for example, are likely to be treated as authoritative.19 A theorist working in the area of, say, law and economics might be seen as operating partly within and partly outwith the paradigm and, in consequence, might or might not find themselves being quoted by judges. Steve Hedley sees this kind of friction as arising from the difference between an internal and external point of view.20 This is helpful in that it indicates the context in which the authority paradigm has its role.21 An internalist considers the work of judge and jurist as work focusing on texts acting as the formal source of law; in turn these texts – legislation and reported cases – are considered by judge and jurist as having an absolute authority in the sense that the methods employed in analysing and applying them are limited by strict formal boundaries. The statutes and judgments can be criticised and interpreted, but their authority as ‘law’ cannot be questioned. This authority paradigm restriction has an important ideological dimension in that judicial decision-making should be both free from personal bias and orientated towards making the law as certain and predictable as possible.22 The authority paradigm in other words is part and parcel not just of the rule of law principle but of justice itself. It is of course easy to exaggerate the formalistic approach associated with this authority paradigm, which in turn reveals another tension within legal knowledge. This is the tension between the language of the law itself – the legislative text or the Supreme Court judgment – and the methods employed by those who are interpreting and applying these texts.23 There are, writes a French professor, real choices open to those who judge actual cases, even if

Griffith (1997). This is not to suggest that those working outside of the authority paradigm will have no influence on those working within the paradigm, and indeed on judges themselves. But these works are unlikely to form part of ‘positive’ legal knowledge. 20 Hedley (2009). David Ibbetson also adopts such an approach in his chapter on historical research in law: Ibbetson (2003). 21 On the authority paradigm see Samuel (2009). 22 See generally Priel (2019). 23 Champeil-Desplats (2016), at 408. 18 19

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these choices are hidden behind apparently formalised reasoning processes.24 Thus it may be that, at the level of methodology, not only does authority paradigm formalism turn out to be more multi-dimensional than one might think,25 but equally there ‘exists a plurality of methods and of methodological models available to lawyers’.26 However, one should not underestimate the policing of this methodology. ‘The legal profession and the legal academy’, writes Andrew Robertson, ‘provide a significant institutional constraint by policing (in textbooks and scholarly literature) consistency, coherence and doctrinal stability, and by scrutinising and criticising assumptions made by judges about the potential social and economic consequences of particular legal rules’.27 This remark is revealing. If the role of the ‘insider’ legal academic acting within the authority paradigm is largely to police the work of others, then this surely accounts for the isolation of many academic lawyers from the rest of the social and human sciences.28 Policemen make enquiries, of course, and all scientists and social scientists are subject to intense scrutiny of their methods. Yet such scrutiny is in the interests of the inquiry paradigm itself in that inadequate methods lead to unreliable empirical results. Legal policemen, in contrast, seem to be enforcing not the production of empirical knowledge but the maintenance of a metaphysical – almost theological – model (namely ‘law’) whose function is to ‘police’ society itself. It is tempting to conclude that internalists are not scientists at all – either natural or social – but secular priests engaged in a struggle to enforce conformity at the level both of law and of law-maker. Some of the tensions within legal studies mirror the past struggle between orthodoxy and heresy in religions. Of course, the position is much more complex: there are different groups of players in the internal theatre of law. Accordingly, it would be better to talk of a habitus where different groups of internalist lawyers function.29 However, these different domains are not isolated one from another. Academics often seek to influence judges, while the latter might have to direct their mind to legislators when faced with an ambiguous statutory provision. These interactions themselves can generate certain kinds of knowledge, some of which can be captured either by textbooks – for example on statutory interpretation – or by other forms of publication. The legislator, although often motivated by research from other disciplines, must nevertheless express itself in terms of Ibid, at 402–5. Ibid, at 47–9. 26 Ibid, at 408. 27 Robertson (2009), at 269. 28 For a particularly devastating observation made by two German scholars see Siems (2011), at 83. 29 Atias (1994), at 28. 24 25

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the printed normative proposition. Legislators, in other words, are likely to see law as a matter of rules. The judge, while no doubt accepting that law is certainly about rules, has to interact with the statute in a different way, for what is in issue is the resolving of a dispute between two parties. The academic as policeman might in turn argue that any dichotomy between rule and dispute resolution is a false one since the role of the judge is to apply the rule to the facts, and that this is a matter – at least in easy cases – of syllogistic logic. Formalism masks both interaction and tension. There is also complexity with respect to the internal (authority paradigm) and external (inquiry paradigm) dichotomy itself. As has been noted, there are many academics who operate in both theatres and who are able, for example, to move their levels of observation with ease. In addition, there are jurists who can work with proficiency in more than one discipline. Once one can stand outside the authority paradigm habitus one needs a different epistemological framework. But this raises a tension between formalism and realism, the latter term being understood in a very wide sense (embracing perhaps all inquiry orientated approaches). Just as the researcher researching the sociology of the science laboratory might not be considered by those working in the laboratory as true ‘scientists’, so those lawyers working outside of the authority paradigm – or doctrinal law as it is sometimes called30 – might not be considered true ‘lawyers’ or ‘jurists’.31 In fact, within the common law world, such a sharp dichotomy is seemingly not a characteristic to be found in many law faculties: few wish to extract law from its social context.32 From the historical viewpoint, as will be seen, the authority paradigm that governs the internalist and formalist approaches has been in existence since the time of the Glossators. Non licet allegare nisi Iustiniani leges, said the medieval jurist Azo (1150–1230).33 As this assertion indicates, the authority in the medieval age attached to the text itself, but this was to give way in the sixteenth century to an authority that attached to mathematical rationality.34 The fundamental rules of law – often from Roman law – were analogous to mathematical or geometrical axioms (see Chapter 5, section 6). By the nineteenth century, in Germany, this thinking had matured into a highly systematised science of concepts and norms where a ‘jurist’s conclusions were to follow from authoritative texts rather than immutable principles, yet they must follow deductively or they would not have the same authority as the texts’.35 One might think that 32 33 34 35 30 31

See Jestaz & Jamin (2004). See Priel (2019). Cownie (2004). Quoted in M Bellomo (1995), at 144; and in Errera (2006), at 53. Champeil-Desplats (2016), at 58–63. Gordley (2013), at 214.

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the common law is different given that it formed outside of the Roman learning. But German thinking was hugely influential on the nineteenth-century common lawyers as the latter moved away from a forms-of-action approach to one founded on the great European legal concepts.36 Moreover, as Peter Stein noted, English law, for all its other strengths, was weak on legal theory and thus ‘turned for inspiration to the current continental theories, necessarily based on Roman law’.37 The authority paradigm, in short, is an essential feature in the history of both the civil law and the common law (or at least, with regard to the latter, from the end of the eighteenth century), and it is this paradigm that in many ways holds the key to the various tensions identified as underpinning legal knowledge. As for formalistic legal knowledge, it is accordingly trapped in an epistemological cycle of its own making and this is what renders it, in relation to the other social sciences, somewhat ‘odd’. The authority paradigm is important for historiographical reasons because the historian, as opposed to the doctrinal legal historian, is working with the inquiry paradigm. The approach of the historian towards texts is therefore not always the same as the jurist’s, for much depends upon what forms the focal point of the historical investigation and the nature of the engagement with the text. There is also in play, perhaps, what one legal historian calls the ‘image of law’.38 Accordingly, one can pose a number of questions. Is the text one that is to be regarded as situated in time or is it one that has an authority that transcends time? Is the text one that is being approached from a theoretical context that operates at the time the historian or jurist-historian is researching the document or is an attempt being made to locate the text within the theoretical context of its own period? What information is being sought from the text: is it descriptive information about the period in which the text was written or is it normative information? If it is the latter – that is, normative information – is the text being examined for what it might reveal in terms of some underlying principle or is it being investigated so as to determine the outlook or theory of its author? In fact, it may also be the subject of a philological investigation: has the text been ‘corrupted’ by some later interpolation or is it the original author’s own words and nothing more? Indeed, there are a range of reasons for examining a legal text other than for its strict legal content. What, say, is the narrative or stylistic technique in play in this text?39 Or what are the economic implications of this text or series of texts?40 These questions are by no means exhaustive; they are simply examples of differing historical issues with regard 38 39 40 36 37

Ibid, at 204–12. Stein (1980), at 123. Giuliani (2019). Howley (2013). See eg Kehoe (2013).

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to a particular res, namely a document or text (often the primary source of information for a historian).

3.

HOLISM VERSUS INDIVIDUALISM

Another fundamental paradigm dichotomy is the epistemological (and often ideological) tension between holism and individualism. One obvious area where the tension manifests itself is in the distinction between public and private law. Public law has been defined by Ulpian as being concerned with the interests (publice utilia) of the state (ad statum rei Romanae spectat) and private law with the interests of individuals (ad singulorum utilitatem).41 Now, it is not being suggested here that Ulpian was conscious of the methodological tension between holism and individualism – the legal historian is always in danger of projecting modern concepts and notions on to the past. But there are texts in the Digest that seem conscious of a tension between individuals and the group. In another well-known text concerning corporations, Ulpian says that what is owed to the corporation (universitas) is not owed to individual members (singulis) and what the corporation owes the individual members do not owe.42 In yet another text the same jurist distinguishes between single persons (persona singularis) and groups of persons (vel populus vel curia vel collegium vel corpus).43 The tension can, it seems, be found equally with regard to things: does a ship whose planks have been completely replaced after many years of repair remain the same ship (cf Chapter 4, section 6)?44 On a more general level some of the Roman concepts, such as ownership (dominium) and contract, suggest a legal structure that is to some extent individualist in its orientation. This said, just what is meant by ‘individualistic’ is by no means straightforward and in the twentieth century the tension gave rise to an ideological debate. The Nazis took the view that Roman law was too individualistic in its outlook and banned its teaching.45 However an Italian professor, Francesco de Martino, opposed this conclusion in claiming that for a system to be individualistic it had to put the interests of individuals above social interests.46

41 D.1.1.1.2. The use of the word ‘state’ here is probably misleading, despite the Latin; the Romans ‘never distinguished the state from the populus’ and thus they never thought of it in terms of an abstract concept: Ravaux (2016), at 28–9. 42 D.3.4.7.1. 43 D.4.2.9.1. Charles Monro translated these groups as mob, municipal body, guild and corporation. 44 D.5.1.76. 45 Ravaux (2016), at 26. 46 Ibid, at 26–7.

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This was not, he argued, the case with Roman law. Aldo Schiavone, in his detailed history of the development the notion of ‘law’ (ius) in Rome, arrives at a similar conclusion: an individualistic conception of the person never took root.47 Echoing Henry Maine, this historian of Roman law asserts that one should see the situation as one of status and not one of individual economic actors; it is only the modern era which will impose such an individualistic reading of Roman law.48 Schiavone ends with a historiographical warning with respect to this individualism tension. The projection onto the Ancient World of this individualist paradigm from the seventeenth century onwards was the ideology of a culture that was in the process of developing and not a reflection upon an empire that was dying.49 Accordingly, one can ask this question. Does the notion of ius represent a social phenomenon – ubi societas ibi ius – or should it be translated as an individual right (ius nostrum)?50 Take the following assertion, admittedly not made by a legal historian, but by a specialist in contemporary private law. ‘Although the Greeks literally didn’t have a name for “rights”’, writes Robert Stevens, ‘all of us at all times and places have them’.51 As we have seen, a legal historian such as Aldo Schiavone would be rather wary of making such a sweeping claim since there is the danger of imposing a contemporary notion on the distant past, with the result that the latter gets distorted. Even in Roman times, as will be seen, the modern notion of a ‘right’ did not exist in a society that had not developed individualism to the extent that it was to be developed after the rediscovery of the Roman sources in the eleventh century (Chapter 5, section 2). Moreover, to talk in terms of ‘rights’ (iura) suggests a separation of substantive law from procedure and remedies (actiones) which the Romans probably never completely achieved, or at least not until later times.52 The historical mistake, therefore, is that in seeing, say, Roman law through a rights structure one is in effect seeing Roman law through the nominalist mind of a sixteenth-century jurist rather than the more universalist outlook of a Roman one.53

Schiavone (2017), at 438–9. Ibid, at 439. On Maine see Stein (1980), at 86–98. 49 Ibid: la cultura di un mondo che si stava formando, non il riverbero di un impero morente. 50 The expression ubi societas ibi ius is to be found in Henri de Cocceji's commentary on Hugo Grotius’ De jure belli et pacis attached to the Prolegomena § VIII. 51 Stevens (2009), at 164. 52 But cf D.44.7.51; J.4.6pr: Nihil aliud est actio quam ius quod sibi debeatur iudicio persequendi. In the Digest this text is attributed to the classical jurist Celsus. 53 Maksymilian Del Mar makes a similar point with regard to HLA Hart’s account of the concept of law: Del Mar (2018). 47 48

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Yet whatever the position in Roman law itself, the actual tension – between nominalism and universalism – has an epistemological and philosophical history that goes back to the late Middle Ages and might well be summed up in the following question. Do forests exist or are there only individual trees? Or, put another way, are generic categories such as ‘forest’ simply names (nomina), or do they have a real existence?54 The tension is one that underpins all the social sciences – and indeed the natural sciences as well – but is relevant in history because, when doing historical research, it has fundamental ontological implications.55 Does one see history as a mass of individual actors or is it a matter of social groupings? The tension equally underpins methodological approaches and schemes of intelligibility (cf sections 6 and 7 below): structural and often functional approaches, for example, tend to be holistic while actor or agent analysis is individualistic.56 The tension also overlaps with that between language and events in that if generic words like ‘society’ are treated as representing a fact, this will present a different ontological foundation than one where the only facts are the individuals that make up the group. How does the historian, then, provide an account of an event such as a battle or a revolution? Is it just a matter of individuals or is the event more than the sum of these individual parts? As Bernard Valide says, the historian has to construct a model that simplifies and renders abstract to some extent the complexity, but such a historian ought always to keep in mind the gap between the model and reality.57 ‘The social fact such as some sociologists recognise it’, asserts Valide, ‘is a philosophical construction, not a historical fact’.58

4.

LEVEL OF OBSERVATION

Another historiographical aspect of this tension between the whole and the particular is to be found in the question of level of observation. From the International Space Station an astronaut sees only forests, while the hunter in the forest sees only trees. When transposed to history, the tension reveals itself in the debate between macro- and micro-history and how the different levels of observation might be connected.59 The tension between the whole and the particular also translates into a conflict of methods: macro-history tends towards a structural scheme of intelligibility while a micro approach focuses

56 57 58 59 54 55

See Sol (2016). See generally Valade (2001). Ibid, at 377–82. Ibid, at 393–94. Ibid, at 401. Offensdtadt (2018), at 89–95.

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on actors.60 A micro approach can also focus not just on actors (personae) but also on events (res): is history a matter of understanding particular events or is it a matter of comprehending a mass of events taken together or as a whole? Different levels of observation and their different schemes of intelligibility can lead to different historical knowledge. However, this leads to a further historiographical, and indeed epistemological, issue: can these knowledges be connected or is there a discontinuity between the various levels of observation? Now, discontinuity does not necessarily mean conflict. As Dominique Desjeux observes: Again, it is not because I work as historian on the long view that there are not individual heroes or great men. If I focus on the individual at a micro-individual level, from a psychological or sociological viewpoint, it is normal not to see social classes or institutions, but I cannot say that they do not exist. At best, I can say that it is a subject that does not interest me or which does not appear central to the problem with which I am dealing.61

Nevertheless, the discontinuity cannot be ignored. Not only do the different levels of observation bring into play different methods and schemes of intelligibility (see below, sections 6 and 7) but they make it impossible to talk in terms of a continuing ‘reality’.62 Is the macro reducible to the micro, and can one proceed from the micro to the macro? ‘The question of individualism, of holism, of social classes, of determinism and of liberty’, says Desjeux, ‘becomes one of the level of observation since all of these dimensions are true at the same time but only visible at certain levels’.63 Different levels of observation are of course common in legal history: there is micro and macro legal history. There are works on the development of a particular area of the law from the distant past to the present; there are works on the history of legal concepts; there are works on the history of legal institutions; there are works on the history of legal theory; and there are works on individual historical judicial figures and on individual legal institutions perhaps during a limited period.64 Located between these examples are numerous other legal histories, some operating at a high level of observation, others at a very low level.65 There are also interdisciplinary legal histories, for example

Ibid, at 90. Desjeux (2004), at 95. 62 Ibid, at 109–10. 63 Ibid, at 114. 64 The published work on all of these histories, and others, are far too numerous to cite. 65 See eg Dubber & Tomlins (2018), although this collection is far from comprehensive. 60 61

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law and economics.66 However, perhaps the main historiographical issue is to establish a meaningful connection not only between these different levels of observation but also between what might be called the discontinuity between different programmes and different theories together with the discontinuity between different disciplinary points of view. As Dominique Desjeux says: Broadly speaking, the economist divides up quantities; the geographer, spaces; the historian, time; the political scientist, power; the sociologist, social relations; the anthropologist, cultures; the psychologist, the mind; and the neurosciences, for the most part biological, molecules. It is here that it is important not to conflate the levels [of observation] and to deploy carefully analogical and metaphorical use of concepts drawn from different disciplines.67

One might add to this discontinuity within knowledge the different schemes of intelligibility and paradigm orientations – the authority paradigm versus the enquiry one, for example – which might well be relevant when redeploying a concept from one discipline to another. One thinks, for instance, of the concept of ‘evolution’. This is not to say that the deployment of a concept from one discipline to another is wrong; on occasion it can be very fruitful indeed. But the découpage of knowledge into levels and disciplines, and the different methodological engagements with an object of inquiry, mean that historical enquiry is fraught with epistemological difficulties.

5.

TRUTH VERSUS FICTION

Perhaps a more general epistemological difficulty with regard to legal history is the notion of ‘law’ itself. In a thoughtful chapter on the relationship between legal history and philosophical analysis, Maks Del Mar asks ‘what it might mean to treat law as existing in time and across times’.68 The interesting historical and philosophical issue here is this idea of law’s existence. Does law exist? Certainly, for the legal historian there are manifestations of law; there are the physical institutions, the officials and the vast number of texts from Roman to modern times. There has been and remains a huge community of people acting ‘as if’ law exists. One response to this ‘as if’ idea is to say that ontologically speaking, law consists of rules – or perhaps normative propositions, if one wants to include principles (regulae iuris) – emanating from particular official sources. And so one type of legal history is to focus on the existence of this object. Peter Stein, for example, has written an insightful history of the regulae

Harris (2018). Desjeux (2004), at 101. 68 Del Mar (2018), at 13. 66 67

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iuris from Roman times up until the seventeenth century.69 The object of legal history – or one object of legal history – according to this epistemological viewpoint is that rules exist and can therefore be examined not just from a synchronic position but equally from a diachronic one. These rules, or principles, may of course be contained within cases, and so histories of particular aspects of law – for example land law, contract and quasi-contract – may focus on the reports of these decisions together with any relevant legislative provisions. In fact, Stein’s book focused largely on commentaries on the regulae iuris. Yet, what is the ‘reality’ of this kind of legal history? Is it simply the law report, the legislative and (or) the doctrinal text in which the supposed rules and principles manifest themselves? Is it the rules themselves existing as independent normative ideas? Or is it a group of believers all acting ‘as if’ such rules exist independently of the texts which gives them expression? One response to these questions is to focus on the ‘as if’ and employ it as an epistemological attitude in which the truth or reality is not actually relevant (Chapter 1, section 3).70 What matters is the practical value of the constructed ‘as if’ model. This ‘as if’ attitude, as we have seen, is often referred to as fiction theory – a theory associated with the philosopher of science Hans Vaihinger (1852–1933) – because such models, particularly a mathematical model, contain propositions that do not correspond with reality.71 Indeed, aspects of the model may contradict it. Vaihinger’s thesis was aimed primarily at the models used by natural scientists and by mathematicians to represent reality, but he also extended his theory to law.72 According to Vaihinger, these ‘fictions are mental creations’ which have been ‘stimulated by the external world’.73 One of the principal difficulties of extending fiction theory to legal history is that this history is itself full of legal fictions which themselves have attracted attention from jurists.74 The theory of ‘as if’ can then become embroiled in fictions operating at lower levels of abstraction, with the result that any criticism attaching to the latter infects the former.75 This is not to assert that these lower level fictions share little in common with fiction theory; for the notion of ‘as if’ will obviously apply to any legal fiction. Moreover once one accepts – as English law seemingly does76 – that a concept such as legal personality is a fiction, then it becomes feasible to ‘trade up’, so to speak, and assert that

71 72 73 74 75 76 69 70

Stein (1966). But cf Penner (2019). Bouriau (2013), at 13. Vaihinger (2013), at 26–8. Ibid, at 9. See generally Del Mar & Twining (2015). But cf Bergel (1988). See eg Lord Reid in Tesco Supermarkets Ltd v Nattrass [1972] AC 153, at 170.

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all concepts and notions in law are fictions.77 All the same, while it is easy to dismiss fictions at the level of positive law,78 care must be taken not to misunderstand Vaihinger’s thesis. It is not a question of opposing ontological realism, that is to say, the idea that there exists a reality independent of our representation of it. What is being opposed is ‘epistemological realism’, whereby one can access, via language, reality itself (cf Chapter 1, section 4).79 ‘Vaihingerarian fictionalism’, says Christophe Bouriau, ‘emphasises the fictional character of numerous concepts implicated in the construction of experience, concepts that common sense spontaneously interprets as denoting reality’.80 Transposed to legal history, this thesis is not asserting that some historical reality independent of the historian never existed; what it is saying is that this reality cannot be directly accessed. It can be accessed only through concepts, categories and a terminology which act as if they represent this reality.81 Another difficulty with respect to fiction theory and legal history is that of reality. It may be that, for the natural scientist, reality cannot be directly accessed, but it is nevertheless there and, of course, may stimulate a profound change in the model when the model no longer usefully represents the reality (cf Chapter 1). But what is legal reality? A history of physical institutions – the courts, for example – or particular individuals is perhaps not so problematic, since there does appear to be a distinction between the intellectus and the res. There does appear to be a distinction, to use an analogy made quite recently by a French jurist, between the ‘map’ and the ‘territory’ (Chapter 1, section 6).82 However, histories of legal thought and legal ideas present problems since the map (intellectus) and the territory (res) are often one and the same; and so, for example, a history of legal taxonomy is at one and the same time a history of a scientific scheme and the object of this scheme. There is no physical reality as such even if the scheme itself is attempting to provide a model of social reality, for it is not this reality which suggests that ownership, possession, contract and so on are somehow empirical facts.

Jones (1940), at 173–5. But cf Penner (2019). See eg Lord Toulson in AIB Group (UK) Plc v Mark Redler & Co Solicitors [2014] UKSC 58, at para 69, where he says: ‘The solution suggested by the bank is that the solicitors in Target Holdings should be treated as if the moneys which had been wrongly paid out had remained in or been restored to the solicitors’ client account and had then been properly applied after the solicitors had obtained the necessary paperwork. There is something wrong with a state of the law which makes it necessary to create fairy tales.’ 79 Bouriau (2013), at 105. 80 Ibid. 81 Ibid, at 119. 82 Mathieu (2014). 77 78

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None of this is to suggest that such histories should be avoided. But there are some historiographical issues that ought always to be at the back of the legal historian’s mind. Take for example Peter Birks’ examination of the late Roman law taxonomy as found in Justinian’s Institutes.83 He attacked the use of the categories quasi-contract and quasi-delict as being ‘hopeless’ because they contain obligations which arise ‘as though’ from contract or from a wrong: ‘[f]or this is’, he asserted, ‘only a variation upon the theme that all birds must be either pigeons or sparrows’ and that ‘all those which are neither pigeons nor sparrows must be counted either as though they were pigeons or as though they were sparrows’.84 There is in this assertion both an epistemological and a historiographical issue (see further Chapter 4, section 3). The epistemological issue is fairly evident. Taxonomy in law cannot be compared with taxonomy in the natural sciences because with regard to the latter there is an existing independent object that is the subject-matter of the classification scheme. The scheme is founded on clear and identifiable factual characteristics in the res. In contrast, the former has as its object the scheme itself and so, to return to the map analogy, there is no distinction between the map and the territory in legal taxonomy.85 Professor Birks did try to get around this problem by arguing that legal categories – at least in the law of obligations – had causative events as their subject-matter. By this he meant that ‘no right can be understood without regarding the events which bring it into being’.86 Yet, as Charles Webb points out, taxonomy ‘by causative event presupposes […] that we can identify from this list of necessary factual elements one, or perhaps some combination, which can be regarded as the causative event’.87 Given the very complexity of causation, this exercise involves value-laden choices. Moreover, while it may seem feasible at first sight to distinguish legal category (map) from factual event (territory), the category itself goes a long way to define the facts in issue.88 The map and the territory merge. The historiographical issue is perhaps more subtle. In asserting that the quasi-categories were elegant but deceptive, Professor Birks seemed uninterested in examining why the Romans might have been happy to have recourse to ‘as if’ (quasi) reasoning. He seems to have assumed that they ought to have thought more like a German Pandectist and have rejected the ‘as if’ categories on the basis of logical inconsistency. Either there was agreement and thus a contract or there was no agreement and thus no contract; either 85 86 87 88 83 84

Birks (1997a), at 18–19. Ibid, at 19. See further Samuel (2000). Ibid, at 17. Webb (2009), at 225. See further Samuel (2004).

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there was fault and thus delictual liability or there was no fault and thus no liability. Yet such an approach is again to impose the present on the past. Now, Roman legal reasoning was not illogical as such (see Chapters 3–4); indeed, there are examples of what could be termed reasoning in a logically consistent manner. However, reasoning along logical lines was – and is – not the only means of arriving at solutions, especially where there is a mentality in which legal notions were not defined but explained by testing them through detailed factual examples.89 In Roman law itself it seems from the texts very clear that contracts, while not based upon agreement (conventio), nevertheless exhibited this ‘coming together’ as a fundamental characteristic.90 There can be no contract and no obligation unless there is agreement (ut eleganter dicat Pedius nullum esse contractum, nullum obligationem, quae non habeat in se conventionem).91 But what of the situation that is very close to contract? For example, a house is damaged during a storm and a neighbour is so concerned that he contacts the owner who then mandates him to organise repairs. Here of course there is a contract of mandate.92 However, what if the neighbour has no means of contacting the owner, yet, being a good neighbour, acts ‘as if’ he has been mandated? The Romans regarded this situation as giving rise to a claim irrespective of the absence of agreement;93 the situation is so close to mandate that it is ‘as if’ there is a contract (obligatio quasi ex contractu). The same type of reasoning can be applied to situations of damage where fault cannot be shown; nevertheless, because of the utility of granting a claim, it is ‘as if’ there was a delict. Some subsequent jurists might not like this type of casuistic reasoning, but that is no reason why such dislike should be imposed on the past.

6.

SCHEMES OF INTELLIGIBILITY

The notion of ‘as if’ seems, then, to be one valuable epistemological attitude when thinking about legal concepts, categories and taxonomy – although it has its fierce critics94 – if only because such an epistemological attitude could make a contribution to social science epistemology in general. Legal concepts, categories and classification schemes are products purely of the mind (intellectus); they are forms through which it becomes possible to imagine a social world. They are not the object (res) in any physical sense. What is the object, in a physical sense, is the legal texts, but these texts reveal a ‘fictional’ world. Yet Gordley (2013), at 8. D.2.14.1.3. 91 Ibid. 92 R Zimmermann (1996), at 433–4. 93 Ibid. 94 See in particular Penner (2019). 89 90

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how does the mind (intellectus) engage with these texts, particularly historical legal texts? Here it is social science epistemology that has something to contribute to law. Such a contribution is to be found, inter alia, in the provision of a vital methodological framework for appreciating the developments and schools of thought in legal history. Mention has already been made of the causal method (explanation). But what are the alternatives to this methodological approach? With regard to the historical examination of reasoning and method in law, reference will be made to six schemes of intelligibility enumerated by the late social science epistemologist Jean-Michel Berthelot (1945–2006). These schemes have been discussed elsewhere,95 but they are summarised again here in order to establish the historiographical grilles de lecture through which the historical material will be viewed in the chapters that follow. The first of Berthelot’s six schemes is the causal scheme, which is to be found across the sciences – both natural and social – and, as Berthelot notes, is the most familiar. This scheme implies that one phenomenon (B) is dependent upon another phenomenon (A) and that it is impossible to have B without A; equally, any variation of A will have the effect of causing a variation in B (reciprocal implication). This scheme also assumes ‘that A and B are distinct either in reality (different objects or realities) or analytically (different levels of a global reality) and that the element A is conceived as being necessarily prior, chronologically or logically, to the element B’.96 The scheme may be summed up in terms of a general question: why? Why, for instance, do suicide rates vary according to time and place? Why has this engine broken down? What is the cause of this backache? The second scheme is the functional one. This is a scheme where a phenomenon is understood not in terms of its cause, but in terms of its purpose or function. For example, a carburettor in a car engine can of course be understood in terms of its individual parts, each of which is an element in a causal chain; alternatively it can be understood not by dismantling it into its component parts, but by viewing its function within the car engine itself seen as a system (S). What does the carburettor do? In other words, this second scheme is based on the idea that organisms and machines are to be understood in terms of their practical functions (B) rather than in terms of their individual parts. The third scheme identified by Berthelot is often closely associated, as he says, with the functional approach, in that they often share the same terminology and both schemes seem to embrace the idea of a system.97 The main

See Samuel (2014), at 65–95. Berthelot (1990), at 63. 97 Ibid, at 79. 95 96

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characteristic of structuralism ‘is that [the elements] are inserted into a system of oppositions where […] objects, properties, relations […] become signs, elements of a system operating as a code’.98 In such a code a term or phenomenon (A) is to be understood in comparison with other terms or phenomena (B, C, D and so on) which are in correlation and (or) opposition to it. Thus, to give the most simple example, one can understand traffic lights as a structural code: the red light is to be understood in opposition to the green light, both of these, in turn, being the oppositional elements which give the yellow light its meaning. Berthelot sees the distinction between functionalism and structuralism as being one between machine and code; the machine emphasises the circular interrelations between elements whereas the code is a matter of oppositions between elements.99 Berthelot says of his fourth scheme – the hermeneutical scheme – that it is one of the first to be elaborated by humanity ‘in its attempt to explain reality’. It ‘consists of developing systematically a vertical logic of the beyond of appearance or surface of things: B is not only B, for example a tree a little odd in the way it twists its branches into an isolated entanglement’. It ‘is simultaneously something else, a force, a spirit, a power which is recognisable by this form’.100 A phenomenon (B) is not, then, explained in terms of its cause, nor as part of a system or as the function of this system. The phenomenon is explained in terms of its deeper sense (B). The vertical logic is that B is a signifier (signans) of something that lies below its surface, namely the signified (signatum) (A). This method is of course better known as interpretation, and is associated in particular with theological texts. Accordingly, as Berthelot notes, this scheme of intelligibility is usually employed where the phenomenon (B) is symbolic, normally a language text. What does the text mean (signify)? Nevertheless, it is to be found in psychoanalysis, in sociology, in political science and, in particular, in literature and the arts. With regard to the ‘actional’ scheme (the word ‘actional’ is not a particularly happy translation of actanciel used by Berthelot to describe his fifth scheme), this is where the focus of attention is on the behaviour of actors in society. Social phenomena are understood as consisting of behavioural actions of agents and thus the emphasis is on ‘the intentionality of the actors, that is to say on the logic and rationality of their actions’.101 More specifically, this scheme ‘involves the actual recognition of the intentionality of the action, its irreducibility into a causal determination: the strategic concepts in politics,

Ibid, at 70. Ibid, at 79. 100 Ibid, at 73. 101 Berthelot (1996), at 80. 98 99

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and rational calculation in economics, imply a submission of the action to particular desired ends’.102 Perhaps the most famous of these actors is the homo œconomicus, whose constructed rationality allows the economist to analyse a social system in terms of a market model. In brief, it is a scheme that regards society not as a whole, but as consisting only of individual humans (actors or agents).

7.

DIALECTICAL SCHEME

The sixth scheme identified by Berthelot is of particular importance to legal method and epistemology since it was central to the methodology of both the Roman jurists and, in particular, the medieval Roman lawyers (see Chapter 5, section 2). The scheme is based on the idea that one phenomenon (B) is the result of an internal contradiction within another phenomenon (A). Thus the phenomenon B will be understood only by the discovery of the internal tension or contradiction within phenomenon A, with the result that B can be said to emerge from A & non A (thus the formula will be expressed as A & non A→B). As a method, dialectica is associated with medieval scholasticism which was developed as a device for dealing with apparent contradictions in texts; these contradictions were believed to be only apparent since ‘the unity of the human mind, being a divine creation, could not contradict itself in fundamental matters’.103 Perhaps the most famous medieval philosopher to use this scheme was Pierre Abelard,104 who, in his Sic et Non, listed side by side the inconsistencies that he found in the Bible and which, in fact, he was unable satisfactorily to reconcile. However, his method was successfully used by the monk and canon lawyer Gratian, who in 1140 completed a work entitled Concordia discordantium canonum which harmonised a huge mass of discordant and contradictory church texts to become the most influential textbook on canon law during the whole of the early modern period. As a French legal historian explains: The method used was the one that Pierre Abelard, the famous Parisian theologian, had developed in outline several years before in his Sic et non (‘yes and no’). On a given question, the texts are divided into two bundles: those which were going in the sense of for (of the yes) and those that were going in the opposite sense (against, or non); the contradiction was resolved in a dictum (‘saying’) which was the original work of Gratian and which served as conclusion.105

Berthelot (1990), at 76. Ullmann (1975a), at 121. 104 1079–1142. 105 Carbasse (1998), at 153. 102 103

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And he continues: Take, by way of example, Question 5 of the Cause XXIII of the decretal dealing with the death penalty. This question consisted of forty nine canons, grouped into two bundles: 1/ those which stated the principle, in this case the respect for life; 2/ those which dealt with the exceptions to this principle (legitimacy of the death penalty in certain cases laid down by the law); the two bundles taken as a whole finished with Gratian’s dictum which synthesised the preceding elements.106

The historian points out, however, that: As we shall see, it was not actually a dialectical plan, for the conclusion was contained in the provision itself of the texts, divided up on the lines of principle/exception: it was a question, then, of a dichotomous plan. The true dialectical plan of three parts (one for, one against and a conclusion which amounts to a true progression in relation to the two previous stages) would in truth appear only in the following century: Saint Thomas Aquinas was to use it in a systematic way, with an admirable skill, in particular in his Summa Theologiae. We have seen that this method has been used also by the Orléans masters, contemporaries of St Thomas.107

Scholastic dialectics was, then, a means of testing and ‘included not only general versus special, object versus subject, argument versus reply, but also strict law versus dispensation in exceptional cases, precept versus counsel, absolute rule versus relative rule, justice versus mercy, divine law versus human law’.108 One particular characteristic of the dialectical method is the way it reduces knowledge to a dichotomy, and in medieval law schools students were required to learn lists of oppositions such as ius publicum versus ius privatum, res corporales versus res incorporales, and so on.109

8.

CONCLUDING REMARKS

These schemes of intelligibility, which certainly help in the understanding of legal reasoning – as hopefully will be shown – indicate the relevance of social science epistemology in general to legal studies. They provide a key to understanding the different historical schools associated with the history of Roman law in Europe. Yet, why study these schools? The schemes just outlined provide one answer: the history of legal thought and reasoning, including of course the language through which the discipline has expressed itself, is one of schemes and paradigm orientations. However, another reason why the study 108 109 106 107

Ibid, at 153–4. Ibid, at 154. Berman (1983), at 142–3. Carabasse (1998), at 160.

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of historical jurisprudence is of epistemological value is to be found within the discipline of history itself. ‘In order to understand what history is’, wrote Donald Kelley, ‘we must first ask: What has history been?’110 Similarly, one might say that in order to understand what law is, we must first ask what law has been. As a discipline, law is both old and, seemingly, remarkably stable; yet a history of legal thought reveals both continuity and change, and it is these changes that will allow one to see the various forms of methodological sedimentation that underpins contemporary legal thinking.111 Much of the language and many of the fundamental categories used by Western lawyers were developed by the Romans; the reasoning and interpretation issues have equally long histories.112 Legal epistemology cannot escape from an investigation of how this language has evolved over the centuries and how it has reflected and interacted with perceived social, political and economic reality. Moreover, this understanding of Western legal thought ought to permit the epistemologist to appreciate law as local knowledge; that is to say, to appreciate differences in what constitutes legal knowledge within differing traditions.

Kelley (1970), at 2. Atias (2002), at 184–90. 112 See eg Maclean (1992). 110 111

3. Roman legal methods and reasoning (1) The previous chapters have been concerned with the general epistemological and historiographical issues associated with a rethinking project conducted through the prism of Thomas Kuhn’s scientific revolutions thesis. The emphasis now moves to the texts that provide the basis for an examination of legal thought, reasoning and methods. In terms of chronology, the starting point for this investigation is the corpus of Roman texts, yet an investigation into what it is to have knowledge of Roman law is fraught with difficulties, as already suggested in previous chapters, of an epistemological and historiographical nature. Accordingly, any attempt to provide an epistemological account of reasoning and method in Roman law will not be easy, if only because one cannot focus exclusively on the original Roman texts themselves. There is much more to Roman law than actual Roman law itself. Despite these difficulties, this chapter and the one that follows will attempt to provide an account of Roman legal method and reasoning, but will do so taking some account of developments since the end of the ancient Roman world.

1.

INTRODUCTION: SCHEMES OF INTELLIGIBILITY AND ROMAN TEXTS

In Chapter 2 we saw that six schemes of intelligibility were identified by the social science epistemologist Jean-Michel Berthelot (Chapter 2, section 6). These schemes can be considered as broad methodological grilles de lecture, that is to say, schemes through which one can engage either with empirical objects and facts or with texts in order to elicit knowledge. Different schemes elicit different kinds of knowledge. These different schemes are valuable for historical jurisprudence in that they provide a key to understanding the methodological changes that have occurred in relation to the Roman law (and other) legal texts throughout the centuries since the rediscovery of Roman law in the eleventh century (as will be seen in subsequent chapters). But can they also provide a key to understanding Roman legal method and reasoning? Here one needs to be reminded of a serious historiographical issue. To apply what might be seen as contemporary epistemological schemes to the past is of course to assess the past through modern eyes. Yet, how can one use56

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fully assess the past except through the language, schemes and paradigms of the present? With regard to the schemes of intelligibility, perhaps the issue is less serious than assessing the past through theories that would be completely unknown to past lawyers and jurists. One thinks of law and economic theory and its relevance to Roman law in ancient and medieval times. Such a theory was unknown to Roman jurists because economics as a knowledge discipline was unknown as such.1 A similar point is made by Wolfgang Ernst with regard to modern theories of causation and Roman law.2 One can no doubt make the same argument with regard to sociology, yet causality, structural taxonomy, functionality (utilitas), interpretation (hermeneutics) and dialectics do appear to be schemes of which the Roman jurists seemed partly aware. Rethinking Roman legal method and reasoning through the different schemes is, then, probably a more legitimate exercise than rethinking Roman law through modern economic theories – although such an economic approach could well elicit useful information despite the serious historiographical concerns. These schemes will, therefore, form the foundational structure through which Roman legal methods and reasoning will be approached. Perhaps they will not elicit much that is new with regard to this topic, given the huge amount of scholarship devoted to Roman law. Yet they might provide a different way of thinking about the methods inherent in the texts. Moreover, the schemes will set the scene for developments after the rediscovery of the Roman texts in the eleventh century. In addition to these schemes, other epistemological issues will not be ignored. Fictions played a vital role in Roman legal reasoning, as did ideas about what today one might call transnational law. And of course reasoning methods themselves – induction and analogy in particular – will equally be examined.

2.

OVERVIEW OF THE ROMAN TEXTS

Roman law came into medieval and modern Europe as a complete body of texts which became known as the Corpus Iuris Civilis. This collection exists thanks to the last of the Roman Emperors (although he did not reside in Rome), the sixth-century Byzantine Justinian (482–565).3 Justinian became emperor in 527 ad at a time when the Roman Empire itself was not what it had been. It was no longer centred at Rome because there was no longer any Western Empire, for Rome itself had fallen to invading tribes in the fifth century. The remain Gordley (2013), at 304. Ernst (2019), at 109. 3 For a general overview of Roman law see Stein (1999); Jolowicz (1957), at 1–5. A detailed account of the development of law (ius) in Rome can be found in Schiavone (2017). 1 2

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ing empire was centred at Constantinople. However, Justinian had visions of restoring the old empire (renovatio imperii) and set about recapturing what he could, with some partial, if ultimately short-lived, successes.4 Of much greater success was his vision to update and to codify (using codification in its original sense of reducing to books) the Roman laws of the previous millennium. This was an urgent task for both practical and educational reasons. There were already some official and unofficial codes of legislation (lex) in existence, but most were out of date. There were no collections of what was called ius, which included the writings of the great jurists and the law created by the magistrates through their edicta. There were also many fake texts. Justinian set about codifying (producing updated compilations of) all of this.5 He established several special commissions, and what was interesting about them was that they did not consist only of practitioners. There had been a modest revival of the law schools in the later Roman Empire and representatives of these schools were on the commission.6 His projects can be divided into three sections. The Code was the codification of legislation (codex). The commission worked through all the older codes and extracted those that were still relevant, often making alterations to bring them up to date and to resolve contradictions between them. They were in fact ‘compilers’ (compilare, to plunder). The first edition of this code was published in 529. However, it soon became outdated and Justinian realised that a new edition was required; this was published in 534. The Digest was by far the most ambitious project, motivated in part by pressure from the law schools. It was a project to produce a compilation of all the juristic writings.7 This was ambitious because from the third century bc until the third century ad there was a vast amount of juristic literature written, perhaps, by some of the best legal minds in Rome. Justinian appointed a commission under Tribonian (485­–542) in 530 and they were given the task of selecting from the vast surviving juristic literature all that remained relevant.8 Most of the best literature had been produced during the first two and a half centuries ad, an epoch known as the Classical Period. However, the commission was empowered, again, to make alterations so as to bring the law up to date and to iron out contradictions and controversies between the jurists arising as a result of differences of time or of school disputes. The commission worked through more than 200 legal works and managed to complete their task in just three years. The resulting publication, in 533, was called Digesta and 6 7 8 4 5

Tellegen-Couperus (1993), at 140. Although he did not do this work himself: see Honoré (1978). Tellegen-Couperus (1993), at 133–4. Honoré (2010). Honoré (1978).

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given force of law. Because of its subject matter and the way it was compiled, the Digest functions at two historical levels. Its basis is mainly in the writings of the Classical jurists and because the commission had to indicate from where the text came, each extract in the Digest carries the name of the jurist and the book from which it was taken. However, because the commission was also free to make alterations (interpolations) to these texts, the law reflected in the Digest is as much that of the sixth-century Byzantium as the Classical Period. As we shall see, this presented a challenge to modern Romanists studying the Digest because the alterations are not actually identified. So one can never be sure if a statement attributed to, say, Ulpian consists only of his words. The Institutes was the third project undertaken by Justinian. It was a project to produce a new edition of a work published in the second century ad by a jurist called Gaius; this book was called the Institutes (Insititutiones) and was an elementary textbook written for students.9 Justinian seems to indicate that Gaius had become a much loved work (Gaius noster) and thus the structure of the original edition was retained. The Institutes of Justinian was the work of a special commission, again headed by Tribonian, but this time aided only by a couple of law professors; unlike the Digest, it is a book designed for legal education rather than legal practice. These three projects or books came, in modern Europe, to be seen as one large corpus of Roman law (the Corpus Iuris Civilis) and thus they are the means by which Roman law was transmitted. However these compilations were not just put together in a completely haphazard fashion. The Digest, for example, is divided into 50 titled books, subdivided into titled chapters. These chapters are again sub-divided into numbered paragraphs, each of which carries the name of the jurist and the book from which it is extracted. Each paragraph is in turn subdivided into numbered sections. Thus any statement of law can be easily identified by a progression of numbers. For example, Dig 9.2.52.2 (concerning a well-known tort case) can be found by going first to Book 9 of the Digest, then to chapter 2, then to paragraph 52 and then to section 2 of this paragraph. One should note, however, that the opening paragraphs are not numbered and are identified by the abbreviation for ‘preface’ (shortened to ‘pr’). Thus the text D.9.2.11pr (on an interesting causation problem) is to be found as the opening part of paragraph 11. The Institutes are divided into four books with numbered chapters and paragraphs, for example J.3.13pr (on the definition of an obligation). Gaius’ Institutes are structured in the same way, as a virtually complete copy of Gaius was discovered in 1816 (see further Chapter 8).



9

See generally Honoré (1962).

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As we have mentioned, the law to be found in the Justinian compilations reflects two historical layers. The foundation of the Digest is primarily from the first two centuries ad (what is called the Classical Period), overlaid with alterations to reflect the law of the late post-classical (Byzantine) period of Justinian’s time. The Code tended to reflect the later (post-Classical) period, when legislation had become the main source of law. In terms of legal sophistication the Digest is the richest compilation, although the basic jurisprudential principles and divisions of law are set out in the Institutes. At the beginning of the Digest and the Institutes a foundational division between public (ius publicum) and private (ius privatum) law is set out; but when the compilations are studied in detail it soon becomes evident that the contents are devoted primarily to private law (but cf Chapter 8, section 6). ‘Strictly speaking’, as Walter Ullmann has pointed out, ‘the Digest was a collection which was made up of fragments, snippets and excerpts of varying length from the statements of the jurists of the period between the second and the fourth centuries’. Most of these are concerned with ‘the law of persons and things, family law, the law of inheritance, the conditions of men, their status, and the relevant legal transactions which occurred in civilised communities’.10 Thus, despite the encyclopaedic numbering, there is, first, a very slight discursive quality to the content of the Digest and, second, not that much on what today we would call constitutional and administrative law. However, there are some statements of supreme importance in terms of constitutional theory, the most interesting being that by Ulpian on why legislation by the emperor is law. ‘What pleases the prince has force of law’, says this celebrated jurist, because the Roman people, who once held supreme sovereign power (imperium), transferred this power to the emperor by the lex Regia.11 In addition, the first books as a whole in the Digest contain general ideas about what today we would call legal and constitutional theory,12 and the very last book is entirely devoted to abstract legal maxims (Regulae iuris). In other words, the Digest contains both ‘law’ (details of private law) and, at least to some extent, a science, or theory, of law.

3.

ROMAN LEGAL REASONING: GENERAL OVERVIEW

The Classical Period, which covers more or less the first two and a half centuries ad, is traditionally regarded as the most sophisticated era of Roman

Ullmann (1975), at 55. D.1.4.1; Ullmann (1975), at 56. 12 Ullmann (1975), at 55. 10 11

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legal culture.13 However, from a diachronic perspective, the preceding epoch – known as the Republican Period – was the time when the foundational conceptual structures underpinning Roman legal thought and reasoning were consolidated. Just how these structures and reasoning methods developed is of course important to the understanding of legal knowledge development in Rome, but if one is to analyse Roman legal reasoning it is probably convenient to focus one’s attention on the period that produced the most evolved writing and reasoning, namely the Classical Period. This said, the connection between this reasoning and literature began with the responsa (professional opinions on practical legal problems), originally given orally but later reduced to texts, thus endowing them with a permanent nature.14 These responsa were at first limited to a particular case, but gradually they expanded beyond the case to embrace more general situations and ideas.15 A narrow casuistry was gradually being expanded through the employment of reasoning techniques developed outside law.16 One can perceive this even in the Romans’ own version of their legal history. The classical jurist Pomponius (second century ad) notes how an earlier jurist, Quintus Mucius Scaevola (140–82 bc), had organised the law in terms of genus and species,17 thus laying the foundations for a dialectical methodology (diairesis) which was to become one of the key characteristics of Roman (and medieval) legal reasoning. As Aldo Schiavone notes, such a method operates both at the general and at the specific level; it organises law as a whole into generic categories each subdivided into specific units, while at the same time serving as a means of dividing up factual situations in order to arrive at a legal solution (as will be seen).18 Alongside this dialectical development was a move towards abstraction and formalism. The ‘introduction of the division into generic categories’, writes Schiavone, ‘was intrinsically tied to the development of a pre-existing ontological base’ in that ‘in each discipline abstraction was always a prerequisite, logically and historically, to the dialectical (diairesis) method’.19 In fact, continues that author, with regard to law there was nothing inevitable about this ontological development – for, in the period before the Republican jurists, when the law was in the hands of priests (pontifices), it was by no means clear that one was going to be able to construct concepts that had the capacity

Schulz (1951). Schiavone (2017), at 78–81, 107, 161. 15 Ibid, 120–3, 168–9. 16 Ibbetson (2015), at 28. 17 D.1.2.2.41. 18 Schiavone (2017), at 182. 19 Ibid, at 190. 13 14

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to advance beyond the strictly casuistic.20 Epistemologically speaking, and using a diachronic framework employed by the philosopher of science Robert Blanché (Chapter 10, section 2; Chapter 11, section 3), there was a difficulty in moving on from the descriptive stage of science to an inductive one. It was the dialectical method that permitted this movement because of its logical, rather than historical, orientation (la sua priorità è stata logiica, non storica).21 The great contribution, therefore, of the Republican jurists was to present the civil law (ius civile) as a network of concepts divided up according to a series of generic categories containing a body of specific casuistic materials which were drawn from the mass of juristic responsa.22 Thus, to use Schiavone’s example, the factual situation of buying and selling moved from an a posteriori analysis where each transaction was simply descriptive to an a priori and inductive abstraction where a legal action attached to a conceptualised ‘buyer’ and ‘seller’.23 This conceptualised structure then became an institution attracting its own rules defining the reciprocal obligations of the parties.24 The same process was repeated with a whole range of other operations, each being given their own name. This in turn permitted the construction of a law capable of attaining a dimension entirely formal – in the sense that, from its point of view, nothing other was capable of being envisaged but the abstract dimension of the relations that it was taking into account – to which was tied the deployment of a specific ‘practical’ reasoning, based upon a ‘calculating’ and quantitative evaluation.25

This evolution from a purely descriptive law of responsa to an inductive stage where persons and things had become formalised notions within a network of assertions, rules and obligations created a reasoning foundation that was indeed metaphysical, but also one that was ontological in that it seemingly operated within factual reality itself. Thus, says Schiavone: The obligation, the contract, ownership, possession, tutorship, usufruct, servitude, pledge, stipulation, loan, deposit, inheritance, legacy, sale, hire, corporation, but also equity, fraud, good faith, mistake and the like – this small group of forms that has become familiar to us through long usage – were to become the actors in an invisible scenario, quasi spectral, but capable of influencing in a decisive way mate-

22 23 24 25 20 21

Ibid, at 190–1. Ibid, at 191. Ibid, at 191–2. Ibid, at 193. See D.18.1 and D.19.1. Schiavone (2017), at 193.

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rial reality, life, and which would finish by appearing completely devoid of sense (legal) outside their presence.26

In other words, these forms of law, having been induced out of descriptive factual situations, re-descend so to speak into the facts. Yesterday’s forms become today’s realities. This ‘ontologisation’ of concepts had the result of merging form with function and so, to return to the example of sale, it became a factual reality, but a reality that operated equally in the abstract world of law. It appeared as an empirical transaction that acted as the source of legal obligations; sale became the causa that underpinned the contractual remedies. The forms got lost in the substance. Such an evolution applies across the whole of the civil law – not just with respect to operations like sale or hire – and so possession, servitudes, wills, dowry and so on all exist as both realities and legal concepts. The reasoning of the jurists was therefore able to move with ease from facts to law and from law to facts. Thus, as Schiavone says, ‘the originality of the epistemological model that Roman legal thought elaborated, [was] its capacity to combine abstraction and realism’.27 Viewed from the outside, then, these groups of forms – sale, hire, possession, ownership and so on – became the substance of the discipline of law. They became ‘blocks’ that were, said Alan Watson, largely self-referential and were ‘rigorously separate’28 one from another, and this was one reason why the Romans ‘never developed a general theory of contract but only individual types of contract’.29 Each type was an individual block. The same was true for delicts and for inheritance, possession, ownership, servitudes and so on. Watson noted that the self-referential nature of these blocks is to be found in the fact that only rarely ‘are arguments drawn by analogy from one block to another’30 and so, for example, there is little interconnection between the different kinds of contract. There may be references to other legal actions and other areas of law – for example, in the ‘block’ dealing with the contract of loan of an item for use by another there are references to theft and to delict31 – but Watson seems correct, with one or two exceptions,32 in saying that there is largely an absence of any cross-referencing in terms of rule analogy. Thus in the contract of gratuitous loan of a thing (commodatum) there is a longish discussion about which party must bear the risk if the thing lent is destroyed, and

28 29 30 31 32 26 27

Ibid, at 196. Ibid, at 201. Watson (1981), at 16. Ibid, at 16–17. Ibid, at 18. See eg D.13.6.7. See eg D.19.2.2; D.19.2.31.

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what emerges is that the risk is normally on the owner of the thing. However, there is an exception to this principle if the loss can be attributed to some fault on the part of the borrower.33 This is not directly stated as a rule but emerges out of the various factual examples cited by the jurist Ulpian. Now, if one leaves the gratuitous loan-of-a-thing contract and examines the more general, but quite separate, contract of hire (locatio conductio), one finds an almost identical discussion; yet there is no reference to any other type of contract.34 There is no attempt to generalise. Indeed, there is no attempt to formalise a general rule (regula) about liability with respect to the destruction or loss of things lent or hired. Despite this ‘block’ effect, it would be misleading to say that there were no attempts to generalise all this legal material within a taxonomical structure. Mention has already been made of the work of the Republican jurists in organising, however loosely, the law into generic categories. Moreover, the Republican lawyer, politician and writer Cicero (106–43 bc) had advocated that knowledge of law depended upon its being organised into a rational systematic whole (ars) employing the technique (scientia) of genus and species.35 Although Cicero was largely ignored by the jurists, there was a great step forward, to use the words of the late Peter Stein (1926–2016), by the jurist Gaius (second century ad), whose introductory textbook – the Institutes (institutiones) – set out the whole of law (ius) according to a three-part scheme of persons (ius personarum), things (ius rerum) and actions (ius actionum) (see further Chapter 8, section 2).36 Despite being rather unimpressed by this plan, Herbert Jolowicz’s (1890–1954) discussion of it remains a useful one with respect to the details of its origin, and he reflects on the possibility that Gaius was not attempting a sophisticated taxonomy of rules in terms of these generic categories.37 They were just points of view. Peter Stein also examines the origins of the scheme in considerable detail and again concludes that it is more of a descriptive account of legal phenomena than any attempt to provide some sophisticated taxonomical structure.38 It was a work designed for students. In this respect it was, it seems, extremely successful, with the consequence that nearly four centuries after its publication, the emperor Justinian oversaw the publication of what was in effect a second edition.39 Thus Justinian's Institutes,

35 36 37 38 39 33 34

See D.13.6.5. See D.19.2.9.3. On which see Schiavone (2017), at 123–6, 167–70. G.I.8; D.1.5.1; P Stein (1984), at 125–9. Jolowicz (1957), at 61–81. Stein (1983). On which see Birks & McLeod (1987).

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published in 533 ad, retains the three-part scheme, even though procedural changes meant the law of actions had lost much of its meaning by this time.40

4.

FORMALISM AND STRUCTURALISM

One of the fundamental schemes of intelligibility that seems to be at the basis of this block and taxonomical formalism is, then, conceptual structuralism. That is to say that Roman legal thought did not only produce concepts, but created concepts that related to each other in a way that was coherent, if not perfectly so, within a genus and species hierarchy. A major contributor to this formalistic and structural characteristic was legal procedure itself, which was in its origin highly formalistic at the level of language. As Gaius informs us, in the days of the legis actiones – what today we would call ‘forms of action’ based upon a legislative text (legis) – there was an emphasis both on the form of the different types of claim and on the words in which these claims were framed. Thus, says Gaius, a man who brought an action against someone for wrongfully cutting down his ‘vines’ had his claim dismissed because the words of the action talked of ‘trees’ and not ‘vines’.41 Such linguistic formalism was not to survive into the Republican and Classical periods, but formal distinctions between different types of action continued to be a fundamental characteristic of Roman legal thought up to the end of the Classical Period. At a generic level, the distinction between an action in rem and one in personam was to remain a dominant feature of Roman legal thought, in turn creating a formal taxonomical division between the law of property and the law of obligations. The jurist Paul thus notes that the substance of an obligation does not consist in making some thing or servitude ours, but in binding another person to give, do or perform something for us.42 This reflects the substantive ‘ricochet’ resulting from the original, and fundamental, distinction made in the law of actions.43 Formalistic distinctions in procedure thus embed themselves in the legal relations between people and people and people and things, with the consequence that post-Roman jurists see them as distinctions at the level of ‘rights’. Medieval jurists talked in terms of a ius in rem and a ius in personam, expressions not really employed by the Romans themselves (although not entirely absent either). To describe this Roman formalism and taxonomy as a ‘system’ is of course dangerous from a historiographical position. The idea of a ‘system’

See generally Jolowicz (1957). G.IV.11. 42 D.44.7.3pr. 43 G.IV.4. 40 41

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and systems theory are modern epistemological notions. Yet if one way of defining a system is as a conceptual structure in which the elements not only interrelate but are capable in themselves, through the interrelation, of creating new elements, then it is very difficult to escape from the idea that Roman law, as described in Gaius’ Institutes, was a system. Its elements – persons (personae), things (res) and actions (actiones) – were linked by a system of relations (dominium, possessio, iura and obligatio) which could, and did, interreact in very creative ways. Take the notion of things (res). As Peter Stein observed, earlier jurists, when they discussed ‘things’, thought in terms of physical property (res corporales), but ‘Gaius’ classification of things involves the acceptance of at least three new conceptual notions’. These were: ‘first, the recognition of incorporeal things as things alongside physical things; secondly, the classification of inheritances and of obligations as incorporeal things; and thirdly, the recognition of contract and delict as sources of obligations. In Gaius’ scheme the category of things thus has to bear most of private law.’44 But what about the separation, noted earlier, between property and obligations? This separation becomes much clearer in book four of Gaius’ Institutes where he distinguishes between different kinds of actions. He wrote: 1. It remains to speak of actions. And if we ask what genera of actions there are, it seems in truth to be two, in rem and in personam. For those who have spoken of four in counting sponsionum in the class of genera they have treated a species of action as if it is generic. 2. An action in personam is one where we sue someone obligated to us either in contract (ex contractu) or in delict (ex delicto), that is where we claim that he ought ‘to convey (dare), to do (facere) or to perform (praestare) something’.45

And he continued: 3. An action in rem is one where we claim either a corporeal thing to be ours or some ius [in a thing], as for instance the ius of using or usufruct, going over, driving over or conducting water over land or of raising the height of a building or of having an unobstructed view. A negative opposing action [in rem] is available to the adversary. 4. And so having described actions, it is clear that it is not possible for us to claim our thing from another in the following way: ‘if it appears it ought to be conveyed’. For what is ours (quod nostrum est) cannot be conveyed to us since of course to be conveyed is to be understood as what is given to us is made ours but a thing which is already ours cannot be made more ours. It is true that one’s hatred of thieves, in order to multiply the actions for which they are liable, it has become accepted that, in addition to the penalty of double or quadruple, thieves are even liable for the recovery of a thing set out in this way: ‘if it appears that they ought to

Stein (1984), at 127. G.IV.1–2.

44 45

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convey’, although this action for what is ours is available against them as well. 5. Actions in rem are, on the one hand, called vindications (vindicationes); actions in personam, on the other hand, whereby we claim that someone ought to convey or do, are called condictiones.46

This passage is particularly revealing in respect of legal thinking and reasoning in the earlier part of the Classical Period. As we shall see, in their reasoning the jurists for the most part start out, when considering a factual situation, from the availability or non-availability of an action. Even when they place the emphasis on one of the parties – can this person bring an action? – the verb often employed is related to ‘acting’ (agere). It is the actio that was, to use Jolowicz’s expression, the ‘instrument of attack’ where ‘the correct instrument must be chosen for the attack contemplated’.47 Or, as Peter Stein put it, the ‘law of actions was not distinguished from the rest of the law’.48 Yet there is a conceptual structure suggested in this passage from book four. Behind these actiones is a fundamental difference of relationship between person and thing – the action being aimed at a thing (in rem) – and person and person, the latter action being aimed at another person (in personam). If one returns to the jurist Paul’s comment, one can see the ‘block’ effect in that a contract (obligation) cannot of itself convey ownership of a thing and so a sale agreement does not transfer ownership of the subject of the sale.49 There had to be a separate conveyance (traditio) of the thing: dominium absque traditione non transit (or similar phrases), said the medieval jurists. Furthermore, if some item of property owned by the claimant was in the possession of another who refused to return it to the claimant, this latter party would in effect bring an action against the thing itself. And this was why the res, or some piece of it representing the thing, originally had to be in court, the name of the defendant possessor not being mentioned in the action.50 As for things (res) themselves, Gaius’ Institutes, as Peter Stein noted, seems to have made, or least recorded, a major evolution in what constituted property. Much of the early law, as one might expect, focused on physical property. But when Gaius turns from the law of persons to the law of things he reasons in the following way: 1. In the last book we set out the law of persons (iure personarum). Let us now look at things (de rebus). These are either in our patrimony or outside our patrimony. 2. The most important division of things puts them into two parts: namely some belong G.IV.3–5. Jolowicz (1957), at 76. 48 Stein (1984), at 128. 49 D.45.1.28. 50 G.IV.16–17. 46 47

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to divine law (divini iuris), others to human […] 9. For what belongs to divine law is no one’s property (nullus in bonis est), whereas what belongs to human law (humani iuris) is for the most part someone’s property; but it is possible that it can belong to no one. Thus things forming part of an inheritance (res hereditariae), before someone appears as heir, is no one’s property. 10. Those things which belong to human law are either public or private. 11. Public things are considered to belong to no one; for they are thought of as belonging to the community itself as a corporate whole (universitatis). The things which belong to individuals are private.51

And he then goes on to say: 12. Further still, some things are corporeal (res corporales), others incorporeal (incorporales). 13. Corporeal things are those that are able to be touched, as for instance land, a slave, a garment, gold, silver and indeed innumerable other things. 14. Incorporeal are those things that are not able to be touched, of a kind that exist in law, as for example an inheritance, a usufruct, obligations however contracted […]52

From a structural point of view there are various elements to note in these passages. First, there is the element of patrimony (patrimonium). This expression is used to represent the total assets and liabilities of a person and it has particular relevance with regard to inheritance law.53 On the death of a person, this patrimony became a hereditas, which was a thing in itself and could be claimed via an actio in rem.54 Second, there is the distinction between property that could be privately owned and property that could not. This distinction was itself interrelated with another fundamental taxonomical division in Roman law, namely that between the ius publicum and the ius privatum.55 Third, there is the element of a universitas.56 This term gave expression to a corporate whole which was seen as a legal person that was separate from the members of the corporation. As a late Classical jurist put it, what is owed to the universitas is not owed to its members, and what the members owe the corporation does not owe.57 This form of conceptual thinking is – as will be seen – one of Roman law’s most striking contributions to modern legal thought. Finally, there is the distinction between tangible (res corporales) and intangible (res incorporales) property. Gaius says that the latter exist only in law (sunt ea [in] iure consistunt) and what is so important about this evolution is that it not only extends considerably the notion of property (res) to cover G.II.1, 2, 9–11. G.II.12–14. 53 See also D.50.16.208. 54 D.5.3.25.18. 55 D.1.1.1.2. 56 See generally Jolowicz (1957), at 127–39; Duff (1938). 57 D.3.4.7.1. 51 52

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virtually all commercial assets, but also shows, as we have mentioned, how law and legal thought had evolved into what today we would call a system: that is to say, a conceptual structure which both defines itself in relation to other elements in the structure and has the capability of creating, as a system, its own new elements, such as of course the corporate person (universitas) and the res incorporalis.58 Where perhaps there is confusion is in the inclusion of obligations into the category of intangible things. This is confusing because it transgresses the frontier between the law of property and the law of obligations, which, as we have seen, were normally regarded as two quite separate ‘blocks’.59 Yet the inclusion also makes sense because obligations – in particular, debts – are assets or liabilities which thus form part of a person’s patrimony or wealth (or perhaps lack of wealth).60 This has resonance today in that people may well regard money in their bank accounts as constituting ‘their’ property, that is to say, as money ‘owned’ by them. In fact, people do not own such money; all they have is a claim in contract (law of obligations) to a sum of money owed to them by the bank. Debts are not capable in theory of being ‘owned’ by creditors (because money was and is a consumable item), yet they are nevertheless assets forming part of an individual’s patrimony.61 This reasoning has its foundation in Gaius. As for the confusion, in Gaius’ time this probably would not have worried jurists because the separation between property and obligations was very clearly set out in the law of actions, that is to say, between actiones in rem and in personam. However, as Jolowicz and others note, in Justinian’s Institutes, the law of actions was very much reduced and does not have a book of its own.62 The separation between property and obligations thus became more difficult to perceive except as a matter of substantive law, where, of course, there was a blurred frontier given that obli Durand (2004), at 5–30. Cf Ginossar (1960). 60 D.50.16.49; cf D.50.16.83. 61 Ibid. The same is true of items deposited with another; a specific piece of property such as an item of clothing deposited with a cleaner or mender remains in the ownership of the depositor, but the owner of, say, a certain weight of corn who deposits it in a heap of corn (consisting of corn deposited by others) in a ship to be transported overseas loses ownership (law of property) to become just a creditor (law of obligations) entitled not to the return of his actual corn but just corn of a similar weight. If he had deposited his corn in closed sacks things would be different; he would remain owner of the actual sacks. See D.19.2.31. 62 Jolowicz (1957), at 61. The reason is that when Gaius was writing the law of actions was still a fundamental element in the operation of the law. By Justinian’s time the formulary procedure of Gaius’ period had been replaced by a procedure – cogitio extraordinaria – in which actions, and the procedure that attached to them, no longer had any formal importance. Procedure was attaching to the court rather than to the actio. 58 59

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gations were a form of property. In the Digest the law of actions was merged with obligations and thus the impression was given that actions and obligations belong in the same category.63 The medieval jurists started to emphasise the difference more clearly at the level of ‘rights’ (iura) in seeing the obligation as the mother of actions (obligatio est mater actionis). As Baldus put it: ius obligationis, quae est iuris, et quae est mater; et ius actionis, quae est filia (the obligation right is the legal right as a mother, while the right to an action is the legal right as daughter).64

5.

CASUISTRY AND CAUSALITY

When one turns from the Institutes to the Digest a rather different image of law is revealed. The various domains of law are no longer organised according to a hierarchical genus and species plan, and different aspects of, say, contractual obligations are not gathered together in one place. Sale, hire, loan, deposit, stipulations and so on are all scattered about the 50 books. Moreover, the substance of the Digest consists primarily of factual problems and posed cases. More precisely, the origin of the texts themselves to be found in Justinian’s Digest indicate the variety of literary and reasoning processes. There are the responsa, the disputations, the commentaries on the edicts of the praetor (ius honorarium), the descriptions of legal situations, the reporting of other jurists’ holdings and comments (sometimes positively and sometimes more negatively) and of course the asserting of rules (regula est…). Various expressions have been used to sum up this legal reasoning at this specific level. Casuistry is perhaps the most common and general term, although one might also talk about ‘bottom-up’ (as opposed to ‘top-down’) reasoning. Such ‘bottom-up’ or casuistic reasoning is characterised by a search for cause. This is illustrated by one of the most well-known casuistic texts: On Capitoline hill mules were pulling two loaded wagons; the drivers of the first wagon which had tilted up were supporting it so as to make it easier for the mules to pull it; however while doing this the first cart started to roll backwards and when the drivers, who had been between the two wagons, had got out of the way, the rear cart was hit by the one in front and moved back and crushed someone or other’s slave boy. The owner of the slave boy asked me against whom he should claim (agere). I replied that the law was to be found in the facts of the case (respondi in causa ius esse positum). For if the drivers who were supporting the wagon got themselves out

D.44.7. Baldus, comment on C.2.1.3 no 5. This jurist also emphasised the difference between ownership (ius dominii) and the rei vindicatio (the actio in rem to enforce ownership): Rei vindicatio non est causa dominii, sed ex dominio procedens: comment on D.6.3.10 [9] no 13. 63 64

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of the way on their own accord and it was as a result of this fact that the mules were not able to hold the wagon and were themselves dragged back by the load, then no action could be brought against the owner of the mules. However with respect to the men who were holding up the tilted wagon a claim under the lex Aquilia could be brought; for it is no less the doing of damage he who voluntarily lets go of something he is holding up so that it hits something; for example if someone who steers an ass does not restrain it, he would do wrongful damage in the same way as if he had discharged a spear or anything else from his hand. But if the mules behaved in the way they did because they were frightened by something, and the drivers left the wagon fearing they would be crushed, while no action could be brought against the men, an action could be brought against the owner of the mules. However if neither mules nor men were the cause, but the mules could not hold up the weight, or while trying slipped and fell and the wagon went backwards and the men had been unable to bear the weight of it when the wagon tilted over, neither the owner of the mules nor the men would be open to an action. What is indeed certain, whatever the situation in this affair, is that no claim could be made against the owner of the mules pulling the wagon behind, for they did not go back on their own accord but because they were hit and pushed backwards.

The Republican jurist (Alfenus) is starting out from the facts – in causa ius esse positum – where the emphasis is on the actio reflected in the verb agere. Against whom could the claimant bring an action? A causal analysis follows. However, it is not simply a question of who caused the damage but a question of who is responsible for it; cause is mixed with fault (culpa). Causation attaches to the culpable act of the person who causes the damage. This, as other texts make clear, is not always easy to assess. Take another well-known example: Again Mela writes, if, when several people are playing with a ball, one of them vigorously kicks the ball so that it knocks the hand of a barber and in consequence the slave whom the barber was shaving had his throat cut when the razor was smashed against it, whoever amongst them was at fault will be liable under the lex Aquilia. Proculus lays the blame with the barber; and rightly, if he was shaving where by custom people play ball and the like, or where people frequently pass, blame will be imputed to him. However it is no bad point to say that if in some perilous spot the barber has set up his chair, anyone who submits himself to such a barber ought to be considered as only having himself to blame.65

The idea of ‘contributory negligence’ (a modern notion) being treated as the cause of the damage suffered is, seemingly, a quite prevalent theme in these Roman liability cases and, of course, appears to confirm the idea that individual responsibility was an important social, if not moral, theme underpinning legal reasoning. However, as Frederick Lawson (1897–1983) said, ‘causation,

D.9.2.11pr.

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even when combined with culpa, does not give one single answer to problems of contributory negligence’.66 One reason for this is that the notion of ‘contributory negligence’ is a more modern idea that applies where the intervening agent in the causal ‘chain’ is the claimant himself. The problem in the texts comes where there is an intervention and it may not necessarily have been a special case that the intervener was the claimant himself. On this point, one text – or two texts, in fact – have proved particularly controversial with regard to causality. The two texts are D.9.2.11.3 and D.9.2.51 and they are the subject of a major study by Wolfgang Ernst.67 The problem is set out by Professor Ernst as follows: Both texts concern the liabilities, under the lex Aquilia, of two offenders: the first mortally wounds a victim and the second attacker finishes him off. According to the former text, the second attacker is liable for killing, whereas the first attacker is liable for wounding; the author of the text, Domitius Ulpianus (ca 170–223), attributes this view, of which he approves, to Juventius Celsus (67­–130). The latter text by Julian (ca 110–ca 175) advocates holding both attackers liable as killers and is thus taken as marking a contrarian view.68

It would be an idle belief to think that one can add anything useful to the debate concerning these two texts, given that it has occupied the minds of jurists for centuries (on which see Ernst’s study). But it might be worth recalling the paradigm orientation point about the epistemological dichotomy between holism and individualism. This seems of relevance in almost any discussion of causation in legal thought, in that much depends on how a jurist ‘sees’ a factual situation. One could say that Julian appears to be taking a holistic approach to these facts; he saw them as a single event and thus the intervention by the second attacker (or indeed an intervention by some natural event) does not result in any kind of cut-off. In contrast, Ulpian seems to have regarded the facts as consisting of two separate events, and thus saw the intervention by the second attacker as isolating (to some extent) the act of the first attacker. How jurists see facts is not, then, some neutral exercise. Often, it determines the legal analysis.

6.

DIALECTICAL ANALYSIS

Professor Ernst makes the important point, with regard to the two Roman texts, that ‘one finds all the elements which a comprehensive statutory interpretation

Lawson (1950), at 55. Ernst (2019). 68 Ibid, at 1. 66 67

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is expected to factor in: literal meaning, historical perspective, teleological considerations, systematic context, and the analogy to similar cases’.69 These he lists in an analysis of Julian’s text.70 These methods will be examined in a little more detail later, but for the moment it might be useful to return to the wagons text. The method employed in this exercise is, as one might say today, almost algorithmic in its analysis; the jurist identifies two possible defendants, the owner of the mules and the drivers, and proposes alternative factual situations in which one would be liable but not the other (either … or). In addition, again arising out of the facts, is reasoning by analogy: letting go of the wagon is analogous to discharging a spear. Of course, behind these facts, there is clearly a rule or principle – indeed, a legislative rule (lex Aquilia) – that acts as the normative basis (to use a modern expression) of liability. The algorithmic nature of the factual analysis becomes evident in the hands of the late medieval jurists (Post-Glossators). To illustrate this, one might start with another celebrated Roman text in which the late Classical jurist Ulpian (170­–223 ad) discusses a problem involving neighbours and a cheese-maker. 5. Aristo says in an opinion give to Cerellius Vitalis that he does not think that smoke can in law be discharged from a cheese workshop on to the buildings above it, unless the buildings are subject to a servitude of such a kind and this is admitted. The same author says that it is not legal for water or anything else to be discharged from the building above to the one below: as a man is lawfully able to do things in his own premises only when he discharges nothing onto those of another; now smoke like water is something that can be discharged. An action is given in this case against the upper owner as well as the lower owner not to act in this way. He says finally that Alfenus writes that an action can be brought in which it is asserted that a person cannot lawfully cut stone on his own land in such a way that fragments fall onto my land. Aristo thus says that a person who has hired a cheese workshop from the town of Minturnæ can be prevented from discharging smoke by the owner of the upper floor, but he would have an action against Minturnæ on the contract of hire; he adds that one can bring an action against the person who discharges the smoke in saying that he has no lawful authority (ius ei non esse fumum immittere) to discharge smoke. It must follow, in contrast, that one can bring an action to assert that he has lawful authority to discharge smoke (ius esse fumum immittere); this also appears to have Aristo’s approval. And indeed an interdict uti possidetis can be obtained if one is prevented from doing what he wants on his own land. 6. A doubt is raised by Pomponius in his Readings (Lectiones 41) as to whether one can bring an action to assert lawful or non-lawful discharge of smoke that is not serious, for example smoke from a hearth. And the major view is that one cannot bring an action, just as

69 Ibid, at 142. All of the Roman texts in D.9.2 are of course statutory interpretation texts since the founding normative source is the lex Aquilia. 70 Ibid, at 143.

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one cannot bring an action to assert that it is lawful to light a fire or sit down or to wash on one’s own land.71

The algorithmic analysis inherent in this Ulpian text is revealed by the medieval jurist Bartolus (1313–57) when he comments upon this Roman text: When the owner of a lower tenement lights a fire in the course of normal family life this is, then, lawful and he will not be held liable if the smoke ascends unless he does it with a wrongful intent. And in the same way if the owner of the upper tenement allows water to flow, for his water time piece, he will not be liable if the water descends unless he was doing it with wrongful intent. But if the owner of the lower tenement was running a shop or an inn, where he was continually having a fire which generated a large amount of smoke, this is not lawful (non licet) according to him [Aristo]. In the same way if the owner of the upper tenement allows water to flow beyond the normal amount this is unlawful he [Aristo] says.72

The smoke or water is discharged either intentionally or unintentionally. If the former, then there will be liability, probably for the delict of insult (injuria);73 if unintentionally, then it must be determined whether it is either moderate or immoderate, only the latter giving rise to liability. This kind of algorithmic structure appears to be latent in the text of Ulpian, just as it is in the text of Alfenus about the wagon case. However, one major difference between the era of the Roman jurists and that of Bartolus is the influence of Aristotle’s syllogistic logic; the logic appears absent from the Digest while it was fundamental to the reasoning of the medieval jurists.74 This is not to say that the Roman legal reasoning was not ‘logical’. There are texts in which the jurist reasons along lines that are logical in the way that if a particular solution or interpretation is adopted it would lead to an undesirable or absurd result. Moreover the jurists certainly employed a genus and species analysis in their reasoning. Yet there is no evidence in the sources of what might be termed ‘axiomatic’ or top-down reasoning whereby a jurist would start out from first principles in order to arrive at a solution to a particular factual problem. Indeed, another difference between the Roman texts and the text of Bartolus is that the former talk in terms of legal actions – one would say today that the reasoning was remedy-orientated – while the latter talks in terms of liability and lawfulness. This emphasis on actions (actiones, agere) is to be found throughout the Digest and is a major characteristic of Roman legal reasoning.

D.8.5.8.5. Bartolus, comment on D.8.5.8.5. 73 See eg D.47.10.44. 74 Gordley (2013), at 14–15; for the medieval jurists see Errera (2006). 71 72

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ANALOGY AND INFERENCE: THE LANGUAGE AND STRUCTURE OF FACTS

This emphasis on the actio, as was seen in the wagons case, leads the jurist into what might be called an ‘interrogation’ of the facts. Take another example: A boar fell into a trap set by you for hunting; unable to escape, I got it out and carried it off. Does it seem to you that I have carried off your boar? And if you judge it to be yours, if I let it go having taken it into the woods does it cease to remain yours? And, I ask, what action against me might you have if it ceased to be yours, should it be one in factum? He [Proculus] has replied: let us see whether the trap was placed on public or private land and, if placed on private land, whether mine or some other’s property, and, if some other’s property, whether with the permission of the other or without permission of the owner of the land. In addition, whether it was so completely trapped the boar could not have extricated itself or whether struggling longer it would have extricated itself. In short, however, I think this, if it comes into my power (potestas), it is mine. But if however the boar, being mine, you send it away back into its natural environment, and it ceases being mine, an action in factum against me ought to be given, as if (veluti), according to an opinion (responsum), a cup belonging to another had been thrown overboard from a ship.75

The dialectical nature of the interrogation is very much in evidence in this example, as indeed is the recourse to analogy – the cup and the ship – brought into play as a kind of fictional ‘as if’ justification. Yet of course these are not just ‘brute’ facts. They are facts that are entirely legalised, so to speak, in the way that the interrogation is conducted through legal notions: the distinction between public and private land (ius publicum and ius privatum), between different owners of the land and between potestas and the implied non-potestas, this power over the animal determining possession or non-possession. Rome was a society of legalised facts. These legalised facts are of particular importance in the context of a commercial society since the language of the law becomes absorbed into the facts themselves. Take this example: Several people poured grain into Saufeius’ ship, then Saufeius out of this common grain gave back to one of them his share and later the ship perished. The question is whether the other people, for their part of the grain, can bring an action against the captain for wrongful delivery of cargo (onus aversum). He [Servius] replied that things hired are of two kinds, either the same thing was to be returned (such as for instance when clothes were contracted out (locarentur) to a fuller for cleaning) or other things [of the same genus] were to be returned (such as for instance when refined silver was given to a craftsman so that he was able to make it into vases, or gold for rings): in the former case ownership in the thing is maintained, while in the D.41.1.55.

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latter he is [only] a creditor. It is the same legal situation in the contract of deposit: for if someone were to deposit a sum of money delivered neither in a closed or in a sealed packet, but was counted out, the depositee owes nothing with regard to the thing deposited save to pay back the same amount of money.76

Having described this factual situation infused with legal notions (ownership and contract in particular), the jurists (for Alfenus was referring to Servius) use this situation to infer a solution to the question of whether an action for wrongful delivery is valid: It would seem to follow from this that the wheat belonged to Saufeius and was rightly given back by him. But if each and every portion of wheat were separated by planks or partitions or in some other closed receptacle, so that each was able to be distinguished from the other, so that it is not possible for us to make any intermingling, then it is possible for the one whose wheat had been delivered by the captain to bring a vindication claim (vindicare).

Alfenus then adds some further observations and justifications: And thus he [Servius] was to disapprove the actions for wrongful delivery of cargo (actiones oneris aversi); for if, on the one hand, the merchandise (merces) that was handed over to the captain was generic so that it was made his and the merchant (mercator) became a creditor, then it would not seem to be wrongful delivery of goods since it was the property of the captain. On the other hand, if the same actual thing was to be handed back, the contractor (locatori) has the action for theft, and thus the action for wrongful delivery was superfluous. But if therefore it was given on the basis that it could be returned in kind, the contracting captain (conductorem) ought to be answerable only for negligence (culpa) (for in a bilateral contract the obligation is only negligence), and there is not any fault in returning some of the grain to one person, since he had to redeliver to one or other person first, even if it made his position better than for the others.

These are not brute facts, so to speak. They are structured with an underpinning system of property and contractual relations themselves related to the distinction between specific items that are non-consumable and items that are. Of course, there is a real physical difference: lending a book to a neighbour is not the same as ‘lending’ them a cup of sugar or a ten-pound note so that the neighbour can go to the cinema. But there remains a structural formalism in the way that the facts create the shift from the law of property and ownership (specific item) to the law of obligations. The consumable thing (res) lent is transformed into a debt. Aldo Schiavone, discussing this text, emphasises well these points about the facts being infused with legal notions and about the way

D.19.2.31.

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the dialectical and analogical reasoning is intermingled within this ontological context. As he says: [The law is] an interrelationship of abstract figures and dialectical schemes, a true ontology of actuality. This starts with the distinction between two typologies of hire (an absolute novelty, we should believe: we will come back to it in an instant); and soon after that, analogy which ties them to the figure of deposit, since the same formal paradigm is to be found there; next the distinction between the law of property and the law of credit, from which was depending the possibility of bringing different actions; then a first construction of the concept of a bilateral contract (we will see how this was taken up by Labeo); and finally the notion of fault.77

As Baldus put it, the law was implicated in the facts.78

8.

SUMMARISING OBSERVATIONS

How can one summarise this approach? With regard to the distinction between top-down and bottom-up reasoning, James Gordley notes that ‘a Greek philosopher, or a modern physicist or economist, defines concepts abstractly and then works out their implications one step after another’, whereas the ‘Roman jurists explained their concepts not by defining them, but by testing them against particular cases’.79 Professor Gordley goes on to state that ‘the Roman jurists moved from a concept to its application in a particular case all at once, without explaining how they got from one to the other’.80 There is certainly some truth in this assertion. To take just one example, in the title on hire (locatio conductio) the opening passages describe its similarity to sale,81 but the discussion then moves on to particular factual cases without any proper definition of the contract and little explanation as to its nature as a legal notion. Such information is to be gleaned from the cases and examples discussed in the rest of the title. Yet this is perhaps not so true of other titles. Take the title on possession. The opening paragraph very briefly describes the etymological foundation of the word possessio and its historical relationship with dominium; and, having done this, the jurist makes very clear that one of the fundamental requirements of possession is an intention to possess.82 Thus madmen and children without the authorisation of their tutor cannot possess, for it would

Schiavone (2017), at 246. Baldus, comment on D.9.2.52.2. 79 Gordley (2013), at 8. 80 Ibid. 81 D.19.2.2. 82 D.41.2.1. 77 78

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be like putting a thing in the hands of a sleeping person.83 The paragraph then indeed continues, as Gordley indicates, with the application of the concept of possession to particular cases. However in the third paragraph the jurist Paul (third century ad) lays down what are surely the fundamental definitional characteristics of possession, namely that it applies only to corporeal things and that both physical act and intention are required (corpore et animo).84 Professor Gordley’s view must, then, be treated with a certain amount of caution; there are examples of reasoning that explain how one gets from a concept to its practical application or, at least, from the latter to the former. Yet ‘bottom-up’ thinking is certainly the dominating methodological approach even if one finally ends up with some kind of principle. Indeed, no clearer example is to be found in the following text: He who has contracted to transport a column and if, during the removal, transportation or re-erection it gets broken, the risk (periculum) is with him if through some fault (culpa) of himself or someone employed to do the work, the accident has occurred; however if all the facts show that the highest diligence of a careful person was observed there is no negligence. We appreciate that the same situation applies to the transport of jars or a beam; in fact the same can apply to anything carried.85

The jurist in effect arrives at what today we would immediately see as a general principle, but only by starting out from a factual discussion of columns, jars and beams. The medieval jurists fashioned an expression to describe this kind of approach: the law arises out of facts (ex facto ius oritur).

D.41.2.1.3. Note the use of analogy. D.41.2.3pr; D.41.2.3.1. 85 D.19.2.25.7. 83 84

4. Roman legal methods and reasoning (2) This chapter continues with the examination of legal reasoning and method in Roman law itself through the frameworks of schemes of intelligibility. Functional and hermeneutical frameworks will be of particular importance, but these embrace other notions, such as fictions, which may be seen as functional devices. Hermeneutics is of relevance with regard to ambiguities of language and this raises, besides questions of interpretation, the role of rules in Roman legal thought. Did the Romans envisage their legal system as a body of rules? The relationship between form (whole) and its parts (substance) is equally to be found in the Roman texts, as this relationship could on occasion have practical consequences. For example, does one own a flock of sheep or only each individual animal? Finally, care must also be taken not to be overwhelmed by what might be termed the Roman law myth. Is the importance of Roman law due to its own inherent intellectual and social strengths or is the status of Roman law something created and maintained by much later jurists?

UTILITAS AND FUNCTIONALITY

1.

In Chapter 3, mention was made of a controversial text on causation from Julian. It might be useful to look at this text, as Julian justifies his decision by some interesting arguments.1 The jurist begins by setting out the issue: So badly wounded was a slave from a blow that it was certain he would die; then, in the time between the hit and death, he was made an heir and following this he died from a blow by another person. I ask whether an action for killing under the lex Aquilia can be brought against each of them.

His response was this: He [Julian] replied: in fact it is commonly said to have killed whoever is the cause of death (qui mortis causam) by whatever means; but under the lex Aquilia, is considered to be held liable only he who applied violence and by his own hand, so to speak, caused the death, that is to say in extending the interpretation of the words ‘to

D.9.2.51.

1

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kill’ (a caedendo) and ‘to hit’ (a caede). Again, however, under the lex Aquilia, have been held liable not only those who wound in such a manner to deprive immediately life but also those who as a result of wounding it is certain that life will be lost. Therefore if someone mortally wounds a slave, and another, during the interval, hits him in such a way that he dies more quickly than he would have done from the first wound, it is determined that the two are held liable under the lex Aquilia.

Julian justifies his decision with two principal arguments. The first is: 1. And this is in accord with the authority of the old jurists who, where several persons wound the same slave in a way that it is not apparent which one committed the mortal stab, decided that all were held liable under the lex Aquilia.

However, he goes on to back up this authority justification with a second argument: 2 […] With regard to this, if anyone thinks that what we have decided is absurd, he should reflect that it would be far more absurd if neither is held liable under the lex Aquilia, or one rather than the other [be held liable]; for wrongs ought not to go unpunished and nor is it easy to establish which of the two is to be held liable under the statute. Many are the examples that can be proved in civil law that go against rational reasoning and argumentation (contra rationem disputandi) in favour of the common policy good (pro utilitate communi). I shall content myself with one example. Where several people with an intent to commit theft carry off a wooden beam belonging to another that no single person could do himself an action for theft lies against all of them, although subtle reasoning (subtile ratione) says it would lie against no one of them because in truth no one of them could carry it.

This appears clearly to be an argument founded on a functional scheme. The law has as its function the upholding of the common interest. There are not many statements in the Digest, admittedly, that seemingly adopt such a clear functional, as opposed to a ‘logical’ (rationem), scheme of intelligibility. But such utilitate references do appear occasionally. For example, with regard to the Roman action for things thrown or falling from a building, Ulpian observed that this action was in the public interest (publice enim utile est) in the way that it protected street users as a group (publice enim utile est sine metu et periculo per itinera commeari).2 Perhaps another example is to be found in a text attributed to Tryphoninus: Good faith (bona fides) required in contracts needs to be of the highest fairness (aequitatem summam): but do we judge this purely in terms of the ius gentium (law of nations) or only in terms of the precepts of the ius civile (civil law) and praetorian law? What if someone on a capital charge has deposited with you 100 sesterces:

D.9.3.1.1.

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he is deported, and his property forfeited to the public purse (in publicum). Is this money to be given back to him or handed over to the public purse? If we look only at the ius naturale (natural law) and the ius gentium, then it is to he who has given that restitution is to be made; if ius civile and the legislative order (legum ordinem), it is better forfeited to the public purse: for public wickedness is deserving, as an example to others for deterring wrongdoing, that he ought to suffer poverty.3

Interestingly, this deterrence point is picked up by ninth-century Byzantine jurists commenting on the Roman causation case about the barber who sets up his chair in a place where people are accustomed to playing ball (see Chapter 3, section 5): However, we prefer to make the barber come off worse, and we make him liable to an action on two grounds: […] the other [second ground] is that, even if the one who had his throat cut had not been a slave, but free, it is just, of the two evils, to prefer the removal of the greater to the punishment of the less. For if we do not punish the barber, that sort of man will harm many others in that sort of way. That is clearly the greater danger, which ought to be averted, so that one barber may not be at liberty to damage a large crowd of people, even if the crowd is inattentive.4

This commentary is not from the Roman sources, of course – it is several centuries later. But one feels that Tryphoninus could well have said something similar if asked.

2.

FICTION AND FUNCTIONALISM

Another important characteristic of Roman legal technique and reasoning was the use of fictions. As Yan Thomas pointed out, fictions were absolutely fundamental to the Roman legal technique, yet, as he went on to say, jurists have perhaps not paid enough attention to the device of ‘as if’ as employed by the Romans.5 This expression is to be found quite frequently in the Roman texts (perinde, quasi, si and the like) and it is arguable that it is this ‘as if’ orientation that is the key to understanding the use of fictions – or at least the use of many fictions – in Roman law. Treating something ‘as if’ it were true might at first sight appear to be anything but a legal recognition of social or empirical reality. Yet it could equally be seen as a means of adapting a legal notion for pragmatic ends; it could be seen as a vehicle for achieving a functional goal.

D.16.3.31. Basilica ad 9.2.11pr (translation FH Lawson). 5 Thomas (2011), at 136. 3 4

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The examples of fictions are so numerous that it is difficult to focus on just some typical texts, although Thomas has provided a good selection.6 But one might highlight the different levels at which these fictions were important. At the level of fact, a well-known example is of course adoption, where a person is treated as if they are the biological offspring of another person or persons. Indeed, says one text, a person can be adopted not only as a son but also as a grandson; the law treats the grandson ‘as if’ he is the offspring of a son (perinde quasi ex filio).7 Sometimes such fictions can be obscured by what appears to be the facts themselves. For example, an area of property law that was supposedly only about fact was possession: eam enim rem facti, non iuris esse (it is a matter of fact not law), asserted Paulus.8 But later on in the same title another jurist, Ulpian, noted that anyone ejected by force from possession should still be treated ‘as if’ (perinde) they possess, as they have the power to recover it through legal action.9 One can see here a subtle move from the fact of possession to the ‘right to possess’ (ius possessionis) through the use of an ‘as if’ fiction.10 One can also see the pragmatic (functional) reason for doing this. Possession is of course both a factual and a legal notion, and so can provoke a question about the boundary between law and fact. This was particularly true of Roman law since not all property possessed by a person amounted to legal possession, that is to say, possession protected by possessory remedies. Thus a person who hired property did not have legal possession, only custody (in the post-Roman world attracting the word detentio),11 legal possession remaining with the owner of the thing hired.12 This is not to suggest that the distinction between possessio and custody is founded upon a fiction, but it does bring into play a certain ‘as if’ orientation since the owner is being treated as if he still retained factual control over the property. As one Roman law specialist, Christian Baldus, has put it, the notion of possession does raise an interesting question about the relationship between (Roman) law and reality.13 Yet, again, one can see the pragmatic reasons why the Romans did not want to treat the hirer of goods as having full legal possession.

Ibid, at 169–86. D.1.7.43. 8 D.41.2.1.3. 9 D.41.2.17pr. 10 D.41.2.44pr. 11 See eg Bartolus, various comments on D.41.2.39. Bartolus referring to the expression ius possessionis said that possessio est iuris, sed animus est facti: comment on D.41.2.49 no 1. As for detentio, he thought that this was fact (detentio est facti): comment on D.41.2.1 no 13. 12 D.41.2.19pr. 13 Baldus (2016) at 537–8. 6 7

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But what of concepts more generally? Can they all be seen as fictitious devices? Some legal notions, such as damage (damnum) and interest (interesse), seem embedded in reality and gain their force from social fact rather than legal normativity. Thus the notion of an interest is of importance, for example, in the delict of theft (furtum) and in the delict of wrongful damage (damnum inuria). The expression interesse (and other similar expressions) is employed as a means of assessing the measure of damages, for example where a person steals accounting tablets and the like (tabulas and cautiones), which have no intrinsic worth in themselves.14 It is, admittedly, difficult to describe interesse here as a fiction because the jurist makes it dependent upon the facts;15 the actio furti goes only to the extent of the party’s interest (dicendum est furti actionem in id quod interest locum habere).16 And, indeed, there are some quite detailed and subtle factual analyses.17 Yet one wonders what was really in play with such notions. Were they simply descriptive notions describing an empirical social situation or were they ‘as if’ notions infiltrating themselves into empirical reality so as to allow the law to be applied? Were they not, in other words, functional concepts? Whatever the situation with regard to notions such as interesse and damnum, there were other concepts that seemed to be much more fictional in their orientation and function. The res incorporalis, which has already been discussed (see Chapter 3, section 4), indicated that the image of a physical thing could be extended to embrace a non-physical entity. The res incorporalis was an abstract entity being regarded ‘as if’ it was a physical thing. Again the functional utility of this extension can hardly pass unnoticed. It was not just the physical res that could be extended to the non-physical: the physical person (persona) could likewise be extended to embrace the non-physical person. The corporation (universitas) became a person in itself abstracted from its members. The fictional nature of this abstract entity was recognised by the medieval jurists; Paulus de Castro, for example, described the universitas as a persona ficta,18 and Baldus equally employed the expression, although he thought that in essence it was a corpus intellectuale and thus incapable in itself of being condemned, for example, as infamous (infamia). It was an entity in abstracto et est inanimata.19 Such a view finds some support in the Roman sources: how, asks Ulpian, can a municipal body (municipium)

D.47.2.27pr. See D.47.2.27.1. 16 D.47.2.27.2. 17 See eg D.47.2.32.1. 18 P de Castro, Comment on D.5.1.76 no 6. 19 Baldus, Comment on D.3.2.6. 14 15

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be guilty of fraud?20 One might note that the medieval jurists also regarded this persona ficta as a res incorporalis, suggesting that it was more of a ‘thing’ than a ‘person’.21 However, whether the Romans saw corporate bodies as founded on a fiction is far more difficult to determine. Patrick Duff highlighted some texts that might support a fiction theory,22 the most important of which is one that states: hereditas personae vice fungitur, sicuti municipium et decuria et societas (inheritance functions like a person, just like a municipal body, a town council and a partnership).23 Gaius also seemed to assert that civitates (towns, communities) are in the same position (loco) as private people.24 In fact it was the law of actions that probably forced, for pragmatic reasons, the jurists to recognise the town as a legal subject. What if someone walked off with a piece of public property? The pragmatic solution was to permit the town (universitas) to bring a claim, thus endowing it, indirectly, with legal personality. These kind of texts do suggest that a body such as a universitas or a municipium could have been regarded ‘as if’ they were people (personae), but, as Jolowicz said, ‘the Romans themselves had never worked out the fiction theory’.25 This is hardly surprising since the Romans seemed little interested in theorising as such and so while they certainly recognised the importance both of actual and of ‘as if’ fictions there is nothing in the sources that suggests intangible things and persons were completely devoid of any reality. Towns were probably seen as existing and it is unlikely that other collegial or groups were perceived as actual fictions. Certainly, with regard to the res incorporalis, one wonders if there was, as today, an important psychological element with regard to such an entity. It is easy enough to accept that some legal notions such as adoption are fictions, if only in an ‘as if’ sense. Yet, to recall a point made earlier, would a contemporary person regard ‘their’ money in their bank account as a fiction? Are they not ‘real’ rather than ‘fictional’ assets? Maybe the Romans thought about intangible things in a similar way. The third level at which fictions, or at least ‘as if’ fictions, operated was legal taxonomy. Two categories within the law of obligations are relevant here, namely quasi-contract and quasi-delict. In his Institutes Gaius had originally sub-divided obligations into the two categories of contracts and delicts,26 but he recognised immediately that this plan was unsatisfactory because there

D.4.3.15.1. P de Castro, Comment on D.3.4.7 no 5. 22 See Duff (1938), at 224–32. 23 D.46.1.22. 24 D.50.16.16. 25 Jolowicz (1957), at 134. 26 G.III.88. 20 21

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were certain claims that could not be accommodated.27 In an extract in the Digest from another of his works he had added a third and miscellaneous classification labelled various causes (Obligationes aut ex contractu nascuntur aut ex maleficio aut proprio quodam iure ex variis causarum figuris).28 However, the extract subsequently goes on to describe not just obligations arising ex contractu and ex maleficio, but also quasi ex contractu and quasi ex maleficio.29 Thus by the time of Justinian the plan had expanded with the addition of the two quasi- categories.30 These quasi categories were to attract much criticism from more modern civil lawyers, many of whom, unlike the Roman jurists, saw legal taxonomy as part of a precise legal science underpinning a reasoning approach founded upon deductive logic.31 What, then, was the rationality behind the quasi-contracts and quasi-delicts? Various theories have been advanced over the more recent centuries, but most of them are problematic in one way or another. From a taxonomical point of view, Peter Birks, as we have seen (Chapter 2, section 5), attacked the two categories. Birks may have been perfectly correct at the level of rationality and coherent taxonomy – and indeed there is no doubt that the two quasi- categories cause problems for some jurists when one examines the various actions included in them.32 But from a strictly reasoning and functional point of view, there is the danger of imposing the present on the past in approaching the two categories through the model of contemporary taxonomical thinking. It might thus be valuable to recall the earlier discussion (Chapter 2, section 5). It is quite probable that, for pragmatic reasons, the Romans arrived at these two ‘as if’ (quasi) categories in pushing outwards from facts and remedies. Take the action for necessitous intervention (negotiorum gestio) by a stranger in the affairs of another. As Gaius recognised, this was very close to the contract of mandate; so close, as Gaius implies, that it should be treated ‘as if’ there was a contract.33 The same could be said of some of the other quasi-contracts and quasi-delicts, although perhaps they are not as clear-cut as the case of the intervener.34 How, for example, is the action (condictio) to recover stolen property (actio furtiva) close to a contractual claim? The answer, from Gaius, was that it was a little like recovering property that had been loaned.35 Of course, this

G.III.91. D.44.7.1pr. 29 D.44.7.5.1 and 6. 30 J.3.13.2. 31 Zimmermann (1996), at 18–22. 32 Zimmermann (1996), at 18–22; and see further Descheemaeker (2009). 33 D.44.7.5pr. 34 See D.44.7.5.1–6. 35 D.44.7.5.3. 27 28

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is only speculation, since no one can know for sure what was in the minds of the Roman jurists who formulated these categories. Yet, whatever was in the minds of the Roman classifiers, analogies with pigeons and sparrows are unhelpful since birds and legal actions are quite different objects. It may well be that all taxonomies are fictional (‘as if’) constructs, but there seems no practical (or functional) reason why one might want to treat all birds as if they are pigeons and sparrows, whereas there are practical reasons why a jurist might want to extend facts upon the basis of an ‘as if’ fiction.

REGULAE IURIS

3.

One might note that the Romans did not talk of in terms of a category of quasi-contract or quasi-delict as such – they usually talked in terms of actions arising quasi ex contractu or quasi ex delicto – but if they were to talk in such terms it would be in the plural. Thus there was no law of ‘contract’ or ‘delict’ but a law of ‘contracts’ and ‘delicts’. In other words, there was no general theory of contract or delict; and, as we saw in Chapter 3, the main focal point was the actio. However, they did recognise common denominators. Thus, in a well-known text, Ulpian says: Agreement (conventio) is a general word applying to all things about which persons who deal with each other agree by contracting (contrahendi) or compromising a dispute (transigendi); for just as two people are said to come together when they are brought together and come to a single place from different locations, so also when people of different minds agree as one, that is come together in one mind. So general is the term agreement (conventio) Pedius makes the nice point that there can be no contract and no obligation, either made by the transfer of a thing (re) or by words, if not involving agreement; for even a stipulation which is made by words, without having agreement, is void.36

The importance of this text is that it indicates an inductive form of reasoning. It is not fully inductive, in the sense that Ulpian was inducing out of all the different types of contract a general principle (regula) of agreement (conventio). But he was getting very close to doing this. Another example is to be found in a text from Paul (a contemporary of Ulpian): If a pruner throws down a branch or a person working on a scaffold kills a man [slave] passing-by, he is thus held liable for this if it falls on to a public place and he has not shouted a warning so that an accident could be avoided. But Mucius also has said that if in a private place the same accident occurred it is possible to bring an action for negligence (culpa); for negligence is what a diligent person could

D.2.14.1.3.

36

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have foreseen, is not foreseen (culpam autem esse cum quod a diligente provideri potuerit non esset provisum), or warning is given when it is too late to avoid the danger. According to this reasoning, it does not make much difference whether on public or private land the walking is done, as people commonly walk across private places. But if no path exists, he ought to be held responsible only for intentional harm (dolus), not aiming at someone he sees passing; for negligence is not to be found when it would not have been possible to foresee (divinare) whether anyone was about to cross that place.37

Here again there appears to be something of an inductive technique, namely the ‘principle’ of foreseeability. This is not to suggest that Paul was formulating by induction a rule (regula) out of a set of facts, but the medieval jurist Baldus, in his comment on this text, simply reproduces the foreseeability assertion.38 And so for him it looked as if the text was expressing by induction some kind of more general proposition (principium), even if this is to over-interpret Paul’s intention. Professor Gordley is, then, right to assert that the Roman jurists ‘were neither deducing the results in the cases from concepts, nor deriving general conclusions about the concepts from the results in the cases’.39 He makes this point with particular regard to Cicero, who was dismissive of the learning of the jurists because no one had been able to arrange the material in the manner of an Aristotelian ‘scientific plan (ars)’.40 ‘Roman law’, says Gordley, ‘was not based on a set of rules or principles that the jurists themselves articulated’.41 Again, there is much in what he says. Yet this is not to say that the notion of a rule or principle is absent from the Roman sources: quite the opposite, in fact, as the late Peter Stein’s study of regulae iuris indicates most clearly – and indeed so do the sources themselves, where the jurists quite often employ the word regula.42 As Stein said, the Roman jurists ‘recognised that their decisions should harmonise with each other, but did not conceive of the legal system as founded on a comprehensive framework of broad general principles’.43 This latter point seems to be confirmed in the Corpus Iuris itself. The final title of the Digest is devoted entirely to general rules or maxims, but in the first regula the jurist Paul warns that a rule is a brief description of something, for the law does not arise out of a rule, but is made by the law. Regula est, quae rem quae est breviter enarrat. Non ex regula ius sumatur, sed ex iure quod est regula

D.9.2.31. Baldus, comment on D.9.2.31. 39 Gordley (2013), at 16. 40 Ibid, at 16–18. 41 Ibid, at 18. 42 Stein (1966). 43 Ibid, at 102. 37 38

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fiat.44 By a rule, then, a brief description of things is transmitted. However, as Stein said, this does not ‘mean that they had no rules, or that they failed to abstract the effect of their decisions’.45 The idea that the substance of law consists of rules and principles began to evolve with the shift in Post-Classical Roman times from the writings of the jurists, as opinions (ius honorarium), to the issuing of legislative texts whose orientation, as a Roman text itself says, is towards law as command (praeceptum).46 According to Peter Stein: In the classical period, the term regula connoted a juristic rule, which summed up what had been handed down (tradita) by juristic practice. In the post-classical period it is used of what has been laid down in imperial constitutions.’47

Gradually, then, ius became lex and ratio became regula.48 This shift was important in terms of both theory and method. It was important for theory because the ius honorarium was essentially founded (or at least said to be founded) upon justice, fairness and reason (ratio);49 lex, however, flowed from the authority of the emperor, and thus what the emperor desired had force of law.50 One can see here the foundation of the idea that Rex est lex.51 As for method, the textual nature of legislative rules meant that the focus of attention moved from facts (in causa ius esse positum) towards the words themselves: what did they mean and what did they cover? The reasoning involved in answering these questions was one of interpretatio.52 This is not to say that the jurists abandoned the idea that law was founded upon reasoning (ratio); and so a lex that was against the reason of the law (contra rationem iuris), said the jurists, ought not be taken to its conclusion (non est producendum ad consequentias) or indeed followed (non possumus sequi regulam iuris).53 Nor is it to say that interpretation did not involve the detailed consideration of factual cases (for it must be recalled that all the wrongful damages cases were founded

D.50.17.1. Stein (1966), at 102. 46 D.1.3.1; D.1.3.7. 47 Stein (1966), at 110. 48 Ibid, at 112–14. 49 D.1.1.1.1; D.1.3.2; D.1.3.14-16. 50 D.1.4.1pr. 51 Schiavone (2017), at 414. This expression can be found in Baldus, comment on D.1.3.2 no 5, where he said Rex est lex animata. 52 See eg D.1.3.18. 53 D.1.3.14–15. 44 45

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on a lex: see below section 5). But the shift towards regulae iuris indicated the way in which law was to develop.54

INTERPRETATIO (ARS HERMENEUTICA)

4.

This shift from the ius honorarium towards an ontology of law that was more rule-orientated had an impact at the level of method in that rules were as much about language as about facts. The application of a rule to particular factual situations could well involve an emphasis on the meaning of a word or phrase within the rule. How, then, did Roman legal reasoning approach interpretation? In respect of this question it must be remembered that one is dealing not just with legislative texts; wills also presented problems of interpretation and meaning and so could certain contracts, in particular the stipulation based on formal words.55 Moreover, it is difficult to escape from the contemporary perception of the issues concerning legal interpretation when viewing the Roman sources, a perception whose foundations are rooted in the Renaissance writers on Roman law.56 Consequently, the tensions identified by the humanist jurists are, first and foremost, the one between the letter and the spirit of a text – or, to put it slightly differently, between a strict (or restrictive) and liberal (or extensive) interpretation – and, second, between authority and rationality (see further Chapter 5, section 4). Perhaps another, again slightly different way of expressing this latter tension is between a grammatical and a logical interpretation.57 A third tension is to be found between equity and strict law, one Roman text for instance emphasising aequitas over law (ius).58 Are all of these tensions to be found in the Roman sources? In fact, one way of answering this question is to start out from the medieval and Renaissance jurists who, as Ian Maclean notes, used Roman texts to support their own interpretative opinions. Accordingly Roman texts can be found containing maxims which support contrary arguments: thus, the legislator’s intention may be prized above the literal meaning of the text, or the literal meaning above intention (D.1.3.17, D.50.16.6.1; D.32.25, D.40.9.12); the facts of the case can be prized above the written record, or the written record above the facts (D.33.2.19); laws may be extended in application to casus omissi, or all extension disallowed.59

56 57 58 59 54 55

Schiavone (2017), at 359. See eg D.45.1.111. On which see Maclean (1992). Jolowicz (1957), at 11–12. See eg D.39.3.2.5. Maclean (1992), at 6.

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This observation might suggest total confusion among the Roman jurists, but contradictory principles and approaches are equally to be found in the modern legal systems.60 In English law, for example, statutory interpretation has traditionally been a matter of choosing between three different approaches – namely the literal, golden and mischief rules – all of which, when taken together, hardly amount to some kind of uniform interpretative theory.61 What approach is adopted often depends both on the text to be applied and on the facts in issue. The same attitude no doubt applies to the Roman jurists who were faced with the perennial problem of reconciling words (verba) with things (facta, res) whose relationship had to be mediated through the focal point of the intention or wishes (mens, voluntas) of the writer of the text.62 Added to these focal points was the rationality (ratio) of the law itself. As one Roman jurist put it, the reason why one should treat mistakes of law differently from mistakes of fact is that law can and should be definite (ius finitum), while the interpretation of facts (facti interpretatio) confuses even the most careful of people (prudentissimos).63 As for facts, they are no doubt often complex and ambiguous – requiring, as we have seen, a careful analysis through the use of distinctions and divisions – but of course written law can equally be obscure, especially if the writer uses ambiguous language. The jurist Paul (second and third century ad) wrote that in an ambiguous discourse we do not say two things, but only what we mean. And that is why the person who says something different from what he wishes does not say what his voice says because he does not wish it (non vult), nor what he wishes because he does not say it (non loquitur).64 What, then, if there is an ambiguity in the formulation of a legal action or in a defence to one? The answer seems to be that an interpretation validates rather than destroys.65 In a contract of stipulation, where there is an ambiguity as to the parties’ words (ubi est verborum ambiguitas), it is what the contract intended that is valid (valet quod acti est).66 Moreover, an ambiguous word is to be given a meaning which avoids a damaging result (quae vitio caret) and preserves the intention of the legislator (voluntas legis).67 Yet if a text is clear in its language, then it would seem that it is the words that govern: cum in

On this point see Ernst (2019), at 142–5. For a summary of the three rules see eg Denham J in DPP v Murphy [1999] 1 Irish Reports 98, at 109–11. 62 D.1.3.19. 63 D.22.6.2. 64 D.34.5.3. 65 D.34.5.12 (13). 66 D.34.5.21 (22). 67 D.1.3.19. 60 61

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verbis nulla ambiguity est non admitti voluntatis quaestio (when there is no ambiguity in the words the question of the wishes [of the writer] are not to be admitted).68 To know a statute is to be acquainted not with their words (verba), but with their force and power.69

5.

RULES AND REASONING

What seems to emerge from these texts is not some definitive rule or theory, but a series of practical guides each of which would gain their relevance in the context of particular factual situations.70 Some factual situations might need to be resolved through a liberal (benignius) interpretation and application; other situations might require the wish or intention (voluntas) of the legislator (or the testator) to be the controlling factor. Yet when one looks at the texts dealing with particular statutes or other texts, these guidelines are not points from which the jurists begin their analysis. The approach is normally a descriptive one, first pointing out what the statute is designed to do and second, then going straight on to make particular assertions with respect to the statute and to consider a range of factual questions, often by way of citing the opinions of previous jurists or the holding of an emperor in a rescript. Indeed, the continual emphasis on practical examples and cases can often mask the fact that what is in essence being discussed is the interpretation and application of a statute. This is particularly true of wrongfully caused damage, where the source of liability is an old statute, the Lex Aquilia (circa 287 bc). Thus the title in the Digest dealing with this piece of legislation begins with a short description of its scope and origin before moving on to its first provision, set out in chapter 1 of the statute.71 This text stated, according to Gaius, that ‘one who unlawfully (injuria) kills another's slave or female slave, or a four-footed animal belonging to the class of pecudes, let him be condemned to pay to the owner an amount that was the highest value in the previous year’.72 Gaius then goes on to discuss the class of pecudes and names the animals that fall within the category, for example sheep, goats, bulls, horses, mules and asses.73 He then asked whether pigs are included and cites the jurist Labeo (circa 54–10 bc or 11 ad) in saying that they are, but canis inter pecudes non est (dogs are not), nor are wild beasts such as lions and panthers. As for elephants and camels, quasi mixti sunt (half in half out), but because they are beasts of burden they D.32.1.25.1. D.1.3.17. 70 Ernst (2019), at 143. 71 D.9.2.1. 72 D.9.2.2pr. 73 D.9.2.2.2. 68 69

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have to be included within the chapter.74 This paragraph is followed by an extract from Ulpian, who noted that the killing must be unlawful, for non enim sufficit occisum, sed oportet injuria id esse factum (killing is not sufficient, for the facts have to show injuria).75 Both Gaius and Ulpian then go on to give some factual examples of when the killing is not unlawful and the latter jurist also explains the word injuria and its meaning within the lex Aquilia.76 Much of the rest of the title is devoted to particular cases and factual examples, up until paragraph 27 of the title when Ulpian sets out the provisions of the third chapter of the statute (the second having fallen into disuse), which extends liability to any damage unlawfully done to another’s property.77 Having stated this chapter, the following paragraphs are devoted almost entirely to actual cases and examples, including the facts of the pruner and the mule driver cases discussed earlier (see Chapter 3, section 5 and section 3 of this chapter).78 The point of spending a little time looking at the opening paragraphs of the title on the lex Aquilia is simply to illustrate that there is in play an exercise of interpretation but that the jurists do not seem at all concerned with actual definitions or theories of meaning. They prefer to interpret, so to speak, through the traditional casuistic methods upon which the ius honorarium was founded. Rather than define terms such as pecudes and injuria, the jurists provide factual examples in order to illustrate the scope and limits of such terms. This seems, on the whole, equally true of the term culpa (blameworthiness). As the late Professor Lawson (1897–1983) acutely observed, the Roman cases appear to show that ‘to do a certain act at a certain time and place was culpa, but at another time or place it was not’.79 By this he meant that the jurists preferred to explain fault in terms of specific examples. To burn off stubble in a field is negligent if done on a windy day, where the fire may get out of control and cause damage to a neighbour; if not, and all precautions are taken, it is not blameworthy.80 A slave is accidently killed by a javelin while walking across some ground where people are practising the sport: was it ground devoted to such a sport (in which case the slave ought not to have walked there) or not?81 The same approach is adopted with regard to the word rumpere (break up); the jurists explain its (extended) meaning by way of factual cases and examples.82

Ibid. D.9.2.3. 76 D.9.2.4; D.9.2.5. 77 D.9.2.27.5. 78 D.9.2.31; D.9.2.52.2. 79 Lawson (1950), at 38. 80 D.9.2.30.3. 81 D.9.2.9.4. 82 D.9.2.27.13ff. 74 75

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In short, the whole of the title devoted to wrongfully caused damage (damnum injuria datum) is an exercise in statutory interpretation,83 although when one compares the title with other titles in the Digest dealing with damage and harm – titles not based on legislation as such – it is very difficult to detect much difference in the reasoning techniques.

6.

THE WHOLE (FORM) AND ITS PARTS (SUBSTANCE)

We have seen how fictions were an important part of Roman legal reasoning. Associated with some of these fictions is the question of form and content. If one recalls Jolowicz’s comment about the fiction theory (or lack of it), it was followed by the observation that there ‘is however on the other hand an abundance of texts which raise the question of the “one” in relation to the “many” in such a way as to show that the two were not simply considered identical’.84 In property law the distinction between a flock and its individual animals or a building and the individual materials out of which it was constructed had important practical implications. What if one person built a house out of materials belonging to another? Does one own and (or) possess a flock of sheep as a thing in itself or does one own or possess only each individual animal? This form and content – or the whole and its parts – is given some detailed consideration in a celebrated text by the Republican jurist Alfenus. He wrote: The following case was proposed about some judges who had been appointed to look into some matter who, after hearing the case, were excused and were replaced by others. The question arose as to whether it was the same matter or had the change made it a different case. I replied not only if one or two but all the judges were changed it would remain the same matter and the college of judges would be the same as it was before. And this is not the only occurrence in which the parts are changed and the thing is said to stay the same, but in fact in many situations is this the case. For, a legion is the same, although many were killed and others put in their place. A community (populus) is the same now as it was a hundred years ago, although no one who lived then is alive now. And then there is a ship which has so often been repaired that not a single plank is the same as in the original, but the same ship is considered to be existing. And if anyone was to think that a thing ceases to be the same when its parts are changed, then according to this rationality we ourselves would not be the same after a year, because, as the philosophers say, the very smallest particles of which we consist leave our body every day and are then replaced by others from outside. When then a thing remains the same species, it is considered to be the same.85

Ernst (2019), at 142–3. Jolowicz (1957), at 134. 85 D.5.1.76. 83 84

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To reuse Aldo Schiavone’s comment, there is much going on here with respect to this reasoning. First, there is ‘the use of analogy – college, legion, people, ship, body – combined with recourse to reasoning by the absurd’.86 Second, this reasoning scheme offered a vision of stability that reaches beyond the death of individuals or the decomposition of materials, allowing the law to overcome the ‘perpetual disaster of materialism’ and offer in its place a vision of certainty.87 Third, it presents an image of law (ius) as a structure endowed with reason;88 and this structure links the present not just with the past but, more importantly, with the future. Law is about controlling the future through a rationalised form. The forms of contract and will-making permit individuals to control their property with regard both to their lives ahead and to (for them) the void beyond such lives, while the law of delict acts as some kind of insurance against future uncertainties. This form is particularly relevant, as we have seen, in the case of corporations and other similar groups. Now, from a reasoning perspective, there is no doubt that the Roman jurists arrived at the conceptual point where the group or corporate body was seen as being separate from its members. Mention has already been made of Ulpian’s assertion that what is owed to the corporation is not owed to its members and what the members owe, the corporation does not (Chapter 2, section 3; Chapter 3, section 4).89 And there are other texts suggesting that such a group could have its own persona. For example, Ulpian, in discussing the action with regard to things done under duress (metus), suggests that such wrongful acts can be committed not just by an individual person (singularis persona) but also by a populus, curia, collegium or corpus (normally translated as a mob, municipal body, guild or corporation).90 However, what the Roman law of the Roman world did not do was to utilise the notion of a universitas as the foundation of a commercial enterprise. Such an enterprise, instead, was either a partnership founded uniquely on the law of contract91 – the societas did not have a separate legal personality – or an institution based upon the appointment of a slave or other person in power as a kind of commercial trader with a patrimony (peculium) separate from the master’s own (although still owned by the master).92 Quite why the concepts of universitas and societas were never brought together in the minds of the Roman jurists themselves is probably explained Schiavone (2017), at 260. Ibid, at 261. 88 Ibid, at 261–2. 89 D.4.3.7.1. 90 D.4.2.9.1. 91 Johnston (1999), at 106–7. 92 Ibid, at 100–2. 86 87

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by two factors. The first is political; as Gaius informs us, only a very few kinds of corporate bodies were permitted and thus they were tightly controlled by legislation.93 Jolowicz also notes that ‘the government, throughout the imperial period, was afraid of combinations and kept a tight hand on their formation’.94 The second is social. David Johnston says that there ‘is plenty of evidence in the Digest and elsewhere of a healthy distain for involvement in trade’.95 And while this does not in itself explain why the trading corporation was never developed, it perhaps indicates how Roman law and Roman society never properly moved from family-centred status based on potestas to legal personality founded upon the individual (including the corporation as a person) as an economic unit. According to Aldo Schiavone: What was lacking in the thought of the period of Severus [193-211AD] was not the power of the concepts. It was rather the absence – coming from far back – of historical subjects capable of adopting and developing the signs within the jus naturale so as to make them the ideology of their economic growth, both civil and intellectual.96

Roman law remained ‘a law of status and not of the “economic” individual’.97 Or, put another way, Roman law never really developed its full economic potential, at least when viewed through modern economic eyes of the bourgeois. The idea of form in Roman law is also to be found at the level of words. The leading example is the verbal contract of stipulation (stipulatio), whose binding nature was created purely through the use of formal language. As the jurist Pomponius stated, a stipulation is a verbal concept (Stipulatio autem est verborum conceptio) whereby a person who is asked replies that he will give or do what has been asked.98 For example, if the words ‘Do you promise to do X?’ issued by one party to another are followed by the response from the latter ‘Yes I promise to do X’, there will be a contract between the parties.99 This formality was, however, to act as a means of overcoming the restrictions created by another formality inherent in the law of contracts, namely that a contractual obligation would normally arise only if the transaction fell within one of the formal transactional causes (causae) such as sale, hire, loan or whatever. For a bare pact (nudum pactum) gave rise to no obligation.100 The stipulatio thus D.3.4.1pr. Jolowicz (1957), at 130. 95 Johnston (1999), at 108. 96 Schiavone (2017), at 439. 97 Ibid. 98 D.45.1.5.1. 99 G.III.92. 100 D.2.14.7.4. 93 94

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provided a general means of contracting outside of the set causae and could be used, to employ today’s expression, as a general theory of contracting. As the centuries progressed this verbal formalism eased to some extent, although, as Johnston says, ‘the high classical jurists tolerated no discrepancy between question and answer’ but ‘later this came to be watered down’.101 It is tempting to think that the Romans were giving effect to the parties’ intention to contract through consensual (consensus) agreement (conventio) with the words acting as outward proof. Thus, said Pomponius, contractual stipulations (conventionales) are based upon agreement between the parties (ex conventione reorum fiunt) and there are very many types, all dependent upon the matter contracted (pendent ex negotio contracto).102 At first sight this looks very close to a general theory of contracting based upon agreement between the parties. Yet later on in this title on verbal obligations, the jurist Paul said that if the transaction is hiring, selling or buying something and the other party does not reply with formal words it does not matter because the transaction falls within one of the existing classes of contract based upon consent (non tam verbis quam consensu).103 Ulpian subsequently made the point that in stipulations based upon agreement it was the parties who gave form to the contract (In conventionalibus stipulationibus contractui formam contrahentes dant),104 presumably through the words they choose. In essence, the stipulation did not lose its form; it did not become a general theory founded upon agreement but remained an obligation founded upon words (verba). This situation is perhaps summed up in a maxim employed by medieval philosophers and jurists, namely forma dat esse rei.105 It is the form that gives substance to the contractual affair. A similar expression was used by Baldus in his comment on the Alenfus text, set out earlier, in which the Roman jurist mentioned the ship whose planks are all changed over the years. It is still the same ship, for where the form does not change, the thing itself does not change (ubi non mutatur forma rei, non dicitur mutari res).106 Indeed, such a ship makes a re-appearance in the title on stipulations. An owner promises another a ship and then promptly takes it apart, with the result that the obligation disappears; but if the owner rebuilds the ship out of the same planks the obligation revives, said Paul, because it is the same ship.107 However, Paul continued, if the ship is taken apart by the owner with the intention of putting the planks to another Johnston (1999), at 77. D.45.1.5pr. 103 D.45.1.35.2. 104 D.45.1.52pr. 105 See eg Baldus, Comment on D.2.14.7.7. 106 Baldus, Comment on D.5.1.76. 107 D.45.1.83.5. 101 102

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use but he then changes his mind and rebuilds the ship, the obligation does not revive because it is a different ship.108 What seems interesting – and perhaps a little curious at first sight – with respect to this ship is that the form is entirely dependent upon the intention of the owner. Quite why this should be so is not immediately obvious in itself, but if Paul’s text is examined more closely the ship is used as an illustration about an object forming the subject-matter of the stipulation. In dismantling the ship with the intention of using the planks elsewhere, the object of the stipulation, the ship, is destroyed whereas this would not be the case if it was dismantled with the intention of putting back together again. In this latter situation the form survives and thus remains the object of the stipulation, whereas in the former case it does not. One might note also that if there is a verbal contract to promise to transfer a ship, this forms a single stipulation; but if the owner had previously dismantled the ship and reduced it to a mass of different planks of wood, it is possible that there is a stipulation with regard to each plank – for, as Ulpian put it, there are as many stipulations as objects to which they apply (tot stipulationes esse quot res).109 The reasoning in these kinds of problems could, then, be as much about fact as the forms of law (as one text indicates).110 Yet it is the forms of law that provoke one into thinking about the forms of fact. Is a flock a single object or a mass of individual objects? No doubt such a question might be of interest to philosophers reflecting upon ontological issues, but to lawyers, as we have already seen, such forms can be vital because of the way in which law relates to things in the world. Does one possess the flock or just each individual animal? A thief steals corn from a heap: does he steal the whole heap? One of the lessons to emerge from Roman legal reasoning is that formalism in law is not just confined to legal rationality; it projects itself into the world of social fact in order to make such fact amenable to the application of the law. One fundamental aspect, therefore, of Roman legal reasoning was the development of a conceptual form of thinking which projected itself into the world of social fact and organised it in a way that made it conform to this legal thought. It was not just people themselves conforming to the law, but the whole of social fact equally submitting itself to that way of thinking. The impact of this legal formalism on social fact was not without important consequences for reasoning itself. It encouraged jurists to think analytically. What actually was property? What kinds of things were there? The concept of usucapion forced jurists into this kind of reasoning exercise. Usucapion was, as the jurist Modestinus (third century ad) defined it, a means of acquiring ownership by

Ibid. D.45.1.86. 110 D.45.1.94. 108 109

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continued possession for a period of time prescribed by the law.111 But what if the object is a mixture of other things? The jurist Pomponius responded with this observation: There are, then, three generic categories of corporeal things. The first is one having a single spirit and what the Greeks call unitary, such as a man, a beam, a stone and other single things. Next what is constructed, that is made up of other things which are put together in a coherent way (hoc est pluribus inter se cohaerentibus constat), which are called joint, such as a building, a ship or a cupboard. The third is made up of things which stand apart, that is several bodies not free and at large but subsumed under one name such as a people, a legion or a flock. The first category raises no usucapion issues, but the second and third do.112

This observation is both philosophical in an ontological way (although no doubt in an unconscious manner) and highly practical in that it addresses an important factual issue. In order to understand the operation of legal notions such as possession and usucapion, jurists have to think about the physical world. They have to, in other words, reason analytically and in a process determined by the forms of law. It would be tempting to think that this what Ulpian meant when he declared that law was a real and not a pretended philosophy (veram nisi fallor philosophiam, non simulatem affectantes),113 but that would probably be not just an interpretation too far, but perhaps a bit of wishful thinking.

7.

ROMAN LAW AS MYTH

One might go further. How much of Roman law is ‘wishful thinking’? One of the assumptions of this present work is that modern legal reasoning is founded upon Roman foundations. Romanists such as Schiavone talk about the Romans having invented law, while others have even said that the Romans were pioneers of human rights.114 Pier Monateri’s response to this latter claim is pretty damning: ‘I am glad’, he says, ‘that my rights are not assisted by

D.41.3.3. D.41.3.30pr. 113 D.1.1.1.1. 114 These observations are made by Whitman (2018), at 5 who says that they can cause embarrassment to professional legal historians. 111 112

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Roman justice’, since it ‘is a justice designed for powerful clan bosses’.115 And he continues: Indeed it can hardly be denominated a legal system, since it is not a mechanism of legal enforcement. It is quite clear that the enforcement of the law actually depended merely on the social strength of the parties – absolutely contrary to Schiavone’s idealized law.116

Monateri is talking here of the early Roman law, which, he says, was anything but rational in the modern sense of this term; it was full of exoticism and magic. It was, he says, only in the much later post-classical, or ‘oriental’, period that it became ‘fit for the “Western” ideology of law’.117 Yet there is a much more important historiographical and epistemological point that Professor Monateri makes which is very relevant for this present work on what is essentially the Roman foundations of modern legal reasoning. He makes the point that jurists often speak of a tradition with regard to, say, Roman law and civil law; there is a Roman tradition which many seem to treat as being ‘out there’.118 This, as he says, is not the case, because a tradition is nothing but the adoption of a framework itself depending on a theory. And every theory ‘is a construction, an artefact, and construction entails exclusion’.119 To talk, then, of the Roman foundations of modern law is to participate in this theory construction. Yet, when one looks at the history of Europe, can one really say that it is a history of tradition continuity? Is it not, rather, a history of ‘undeniable disruptures which marked Roman history, the Middle Ages, the birth of modernity, the rise of industrialization, the French Revolution, and all the subsequent transformations of our societies, including secularization and globalization’?120 There are, says Monateri, too many breaks which occurred in the history from Roman times to now, and thus ‘it is patently false to say that modern law is rooted in it’.121 Professor Monateri therefore concludes: From this viewpoint, the ‘renewal’ of Roman law through the ages does not demonstrate a peculiar capacity in Roman law itself, but rather the peculiar capacity of later lawyers, especially in the civil law tradition, to adopt newer rules and solutions and to attach them to the authority of the old Roman texts. Coptic, Ethiopian, or Chinese

Monateri (2018), at 179. Ibid. 117 Ibid, at 180. 118 Ibid, at 181. 119 Ibid. 120 Ibid, at 183. 121 Ibid. 115 116

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texts would have worked as well. The ‘recall to Rome’ does not reflect the quality of Roman products, but the strategy of legitimization that dominated in Europe.122

These views are of major importance and cannot, and should not, be dismissed. For a start, the disruptures mentioned by Professor Monateri have a resonance with regard to the Kuhnian thesis (cf Chapter 1). But great care must also be taken before talking in terms of a Roman foundation to modern law and legal reasoning. The historiographical difficulties attached to attempting to provide some kind of narrative to the two millennia (or more) of law in Europe are formidable and should never be under-estimated. Nevertheless, this does not mean that Roman law as contained in surviving texts is not part of the history of legal thought in Europe. The texts have provided a terminology and a set of categories and contexts that, in form, have appeared unchanging; as for their substance, that is an entirely different matter (as will be seen). The texts have enjoyed, and still enjoy among many jurists, a fundamental authority. This authority may not, as Professor Monateri argues, be inherent in the texts themselves; it may rest in the minds of the interpreters and commentators instead. Yet the Roman texts are important for the methods they have attracted over the centuries, beginning, as this and Chapter 3 suggest, with the Roman jurists themselves. The texts remain valuable evidence about a type of reasoning, even if such reasoning turns out not to be the result of some special Roman ‘genius’. It is these reasoning methods that deserve attention, because they will confirm how jurists in the second life of Roman law came to impose upon the texts, and upon the Roman jurists themselves, qualities that are simply fantasy in terms of any actual Roman reality.

8.

CONCLUDING OBSERVATIONS

These reservations having been expressed, one can finally turn to the Roman contribution. What conclusions can be drawn from this examination of Roman legal reasoning? This question is not easy to answer because the Roman texts themselves do not indicate much direct reflection as such on legal methodology, and probably for good reason. The jurists were too involved with the practice of law itself within, by classical times, a complex commercial society where property and money were the fundamentals of life.123 Epistemological reflection was not something that seemed to preoccupy the Roman jurists and such an exercise would indeed require a certain distance between Roman law

Ibid, at 184. For a general overview of the relationship between Roman law and the social context in which it operated see Johnston (1999). 122 123

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as a body of identifiable knowledge and the theorists reflecting upon it. Such a distance was to be established with the rediscovery of the Roman law in the later Middle Ages, but the danger here of course is that one comes to understand Roman legal reasoning only through the minds and texts of the later civilians. Nevertheless there are some conclusions that can be articulated, or perhaps more accurately re-articulated, given that all that is capable of being said about Roman law and legal reasoning has probably been said over the centuries. The most important of these conclusions is to re-articulate what today we would call the casuistic nature of Roman legal reasoning. The expression ex facto ius oritur, although post-Roman, surely encapsulates more than any other description the nature of the reasoning method. While there are general assertions about law together with the identification of rules on occasions, the great bulk of the Digest consists of factual examples and practical problems. The jurists seem clearly to have thought that it is in these examples that the law and legal position emerges. All of these practical texts contain within them of course a conceptual structure operating within the facts and founded upon concepts that, in form, are still in use today. Ownership, possession, sale, hire, stipulation (the basis of offer and acceptance in modern contract law) and so on make up a formalised model that is integrated into the social reality of Roman life. On occasions there is some attempt at definition – for example, the notion of an obligation was defined in Justinian’s Institutes124 – and, as we have seen, there was some attempt (of a sort at least) to define possession. And some texts reveal a sophisticated level of conceptual thinking, for instance with regard to incorporeal things and legal corporations. Furthermore, as one might expect with a ‘bottom-up’ approach, induction and analogy are to be found among the reasoning techniques. However, if there is one general methodological conclusion that can be extracted from this casuistic approach, it is to be found in the idea that Roman jurists developed law by pushing outwards from the facts. This is by no means an original observation,125 but it can sometimes be eclipsed by an epistemological shift during the second life of Roman law towards a highly conceptualised deductive approach that finally resulted in codification.126 A second conclusion, associated with the first, is the use of what today might be described as a dialectical scheme of intelligibility (see Chapter 2, section 7). This scheme was to reach its most developed legal form during the period of the Italian medieval jurists, yet the foundations are to be found in

J.3.13pr. See eg Weir (1992), at 1616–17. 126 The progress is charted by Gordley (2013). See also Champeil-Desplats (2016). 124 125

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a range of Roman texts. The scheme would today be regarded as algorithmic in its method, for it is founded on a dichotomy between two (sometimes more) possibilities. An excellent example is the text from Alfenus on the wagons case (Chapter 3, section 5). Alfenus offers a series of dichotomies. Much the same can be said of the Ulpian text on the problem of the cheese shop, whose dialectical nature was well illustrated by Bartolus’ comment upon it (Chapter 3, section 6). A third conclusion, associated with the casuistic approach, is that the Roman jurists were unafraid of uncertainty when it came to asserting the legal situations. There are of course plenty of examples of confident legal assertions, but the texts openly reveal differences of opinion between the jurists over certain matters and over possible solutions to posed problems.127 Indeed, on occasion contradictions are seen within the Digest. Law was often about opinions. Again, with codification and with the theories associated with such texts, this idea of difference of opinion became subsumed under a general epistemological outlook, in the civil law world, that solutions could be inferred from a formalised model. Law became a matter of axioms. It may be that thinking within the civil law tradition has now moved into a post-axiomatic phase, but the ontological basis of law largely remains the rule-model.128 Yet it is by no means clear that the Roman jurists thought that law was simply a matter of rules (regulae iuris) and that the Institutes were classifying such rules. This leads on to a fourth conclusion. Did the Romans have a legal theory and, if so, what was it? One immediate response to this question – at least from a modern theorist – is to say that they must have had one, even if it was an unconscious theory. What the sources reveal are the beginnings of functional, structural, dialectical and hermeneutical schemes of intelligibility. The functional is, admittedly, rather simplistic by modern standards; law, said Ulpian, was the art of what is good and fair (ius est ars boni et aequi)129 with the aim of making people good.130 Thus (he continued) it was a real and not a sham philosophy. Ulpian then went on to assert a structuralist model whereby the summa divisio was between public and private law, the latter being derived from the rules (praecepta) arising out of natural law (ius naturale), the law of peoples (ius gentium) and civil law (ius civile).131 Natural law was, said this jurist, that which has been installed in all animals, while the ius gentium was the law used by all peoples.

This aspect of Roman law is well described by Schiavone (2017). See eg the French Code de procédure civile art 12. 129 D.1.1.1pr. 130 D.1.1.1.1. 131 D.1.1.1.2. 127 128

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In short, therefore, the whole concept of law (as indicated by the texts) was rooted in principles arising out of nature and out of societies in general with the purpose of achieving human good. One might add to this external schematic theory of private law the internal scheme seemingly fashioned by Gaius, namely the division of all law into persons, things and actions (together with all the concepts and sub-categories of Roman law). The external theoretical structure was, on occasion, not without its uses with regard to legal reasoning; slavery, for example, was reconciled with natural liberty by locating the latter in the ius naturale and the former in the ius gentium.132 The internal Gaian scheme was founded upon the social realities of people, things and legal processes – actors, props and actions, to use Michel Villey’s theatre analogy.133 Now, it is no doubt easy enough for any modern legal theorist to dismiss much of this as rhetoric rather than theory – although the Gaian scheme and its sub-categories and concepts can hardly be ignored, given their subsequent history (see Chapter 8). This is a legal theory in itself.134 Yet the categories of ius naturale and ius gentium were not only to flourish in the second life of Roman law but to underpin legal theory up until the nineteenth century. Other expressions to be found in the sources such as ius proprium and ius commune were also to act as the foundations for theory (but note, as we shall see, that the expression ius posit[iv]um is medieval and not Roman). In short, this Roman theory, or these theories, are very much still with us today even if the Romans themselves, should they be miraculously reincarnated, would be baffled by the theories that have been constructed upon these categories.135

D.1.1.4. Villey (1979), at 44. 134 Ibid, at 48. 135 An overview of the history of legal theory from Roman times to 1940 is to be found in Jones (1940). 132 133

5. Post-Roman methods and methodologies The Roman body of laws put together by Justinian was rediscovered in eleventh-century Italy and became the basis for the development of university law faculties in continental Europe, and thus for the teaching of Roman law over the centuries to come. This history of Roman law in Europe from the medieval period until modern times is, in many ways, a history of changing methods and theories. This chapter will examine this period; having done this it will turn to the common lawyers, whose history is somewhat different to that of the civilians.

1.

METHOD AND AUTHORITY

Odd as it may seem at first sight, the most useful starting point for considering method (and the theories behind such methods) is perhaps not Roman law itself. In examining legal method it is arguably more useful to begin at a time when method mattered, inasmuch as the epistemology of the time dictated a certain approach. This is the period of the Italian jurists of the twelfth and thirteenth centuries, when the Corpus Iuris was rediscovered and became the basis for the first law faculties in medieval Italy.1 What is relevant about this period as a starting point is that there is a considerable distance, so to speak, between the Roman texts – written many centuries earlier, of course, and within a political and social context very different from that of medieval Europe – and the group of doctors who were working on them and explaining their technicalities. This is not to imply that the Roman jurists’ methods are irrelevant; they most certainly are not, as we have seen in the previous chapters. But the distance between their methods and the production of their writings is much less discernible because evidently they were working on actual cases within a fully functioning system of legal actions and concepts operating in a culture which had produced the legal mentality. In contrast, the medieval jurists, living within a different culture, had to develop particular methods in order to make sense of these ancient texts. They could only connect with the Roman institutions and concepts via the texts, which, given the feudal

1

Ullmann (1975), at 79. See generally Berman (1983). 104

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culture in which they operated, they must have found difficult to comprehend.2 Moreover, these rediscovered texts, being both ancient and of Christian authority (Justinian being God’s terrestrial agent, so to speak),3 had an absolute authority in themselves. They were a source of knowledge that needed no other authority than the text itself.4 What were the techniques developed by the medieval Italian jurists, who attracted the name Glossators (followed in the fourteenth century by the Post-Glossators)? Before discussing these in any depth, it is vital to place them within the prevailing epistemological context. The medieval jurists regarded the Corpus Iuris as a complete and harmonious whole in which each text had an equal status in terms of authority (auctoritas) with any other text.5 Indeed, Justinian himself had stated that within his compilation one would find no contradictions, any apparent ones being resolved and eliminated through subtle reasoning (si quis suptili animo diversitatis rationes excutiet).6 In truth there were contradictions, given the long time-span from which texts were extracted and the haste in which the Digest was complied.7 Nevertheless, as Randall Lesaffer points out: For the scholastics, all these texts held auctoritas, authority. They had claims on the truth in the sense that the full, irrefutable and perfect truth as revealed by God to man lay hidden in them. This had two implications. On the one hand, apart from faith, only the study of these texts could lead to truth. On the other hand, the correct understanding of the texts could result in true knowledge. Like the Bible, these authoritative texts were considered sacred sources of knowledge and truth.8

Put simply, the Roman law texts were governed by an absolute authority paradigm and this paradigm equally meant that the Corpus Iuris was in itself a complete statement of the law and that any legal problem was to be solved only with regard to this Roman law (cf Chapter 2, section 2). One Glossator is thus recorded as saying non licet allegare nisi Iustiniani, that is to say, only arguments drawn from the Roman texts were to be used.9 Another gloss asserted that omnia in corpore iuris inveniuntur (everything is to be found in the Roman and canon law texts).10 It is this authority paradigm (paradigma

4 5 6 7 8 9

Ullmann (1975), at 99. Ibid, at 90–1. Errera (2006), at 25. Stein (1999), at 47; Jolowicz (1963), at 51–4. Constitutio Tanta 15. Ullmann (1975), at 78. Lesaffer (2009), at 240. Errera (2006), at 53. 10 Ibid, at 46. 2 3

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auctoritatis, as a medieval Thomas Kuhn might have said) that thus established a particular mode or method of reasoning in law (modi arguendi in iure). As for the techniques themselves, the Roman jurists had inherited from the Greeks the taxonomical structure of genus and species and this became a key methodological technique of the Italian Glossators, together with the use of distinctio and divisio – for, as the one of the Glossators put it, divisio est innumerabilis materie brevis compositio: division is the means whereby a mass of material is synthesised into a brief scheme.11 Indeed, the structure adopted was one of aut … aut (either … or), which resulted in what today we would regard as an algorithmic approach (cf Chapter 2, section 7). Take for example this gloss with regard to a text in Justinian’s Codex: One who makes a loan of money either his own or someone else’s. If someone else’s money, then lent either under his own name or the other person's name. If lent under the other's name, either with his ratification or without his ratification. If with his ratification, then the condictio [debt remedy] will be acquired by him … [and so on].12

The other aspect of dialectics was the formulation of debates (quaestiones) founded on the method of sic et non, a method associated with the philosopher Peter Abelard (1079–1142). A difficult legal problem would be put to a formal debate, one side advancing a positio and the other side an oppositio, ending with an inferred solutio.13 This use of distinction and division was equally a tool for a dialectical scheme whereby apparently contradictory texts could be harmonised, for, as we have seen, the Roman materials were regarded as a harmonious body of authoritative knowledge containing no contradictions.14 Opposing texts were thus subject to a series of divisions, distinctions and sub-distinctions until a sufficient difference occurred permitting the jurist to arrive at a harmonising solutio.15 Distinctio and divisio were thus employed not just to explain particular texts but to try to solve contradictions between certain texts in the Digest. The more one ‘drilled down’, so to speak (distinctions, sub-distinctions, sub-sub-distinctions and so on), the more likely it was that a contradiction

13 14 15 11 12

Ibid, at 19. C.4.2.2; Kantorowicz & Buckland (1938), at 214. Lesaffer (2009), at 241. Errera (2006), at 25. Ullmann (1975), at 87. See also Ernst (2019), at 11–12.

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could be explained away. Take the following apparent contradiction in the Roman texts. In Digest 12.1.18 Ulpian says: If I (si ego) have given you money as if for a gift and you take it as if for a loan Julian writes that there is no gift. But let us see if there is a loan. I consider that there is no loan either. Furthermore the money does not become the property (non fieri) of the person who took it as he took the money under an impression that was different from mine. Therefore if he has spent the money and the condictio action is quite legally brought, he can all the same plead the exceptio doli [defence of fraud] because the money was spent in accordance with the will of the giver.

Yet in Digest 41.1.36 Julian actually appears to say something a little different: If you and I are in agreement as to the specific thing (cum in corpus) that is transferred but we disagree (dissentiamus) as to the grounds I do not see why the transfer should be ineffective; for example if I believe that I am under an obligation to you arising out of a will to deliver land to you, but you think that it is owing to you from a stipulation. Indeed if I transfer to you an amount of cash as a free gift, and you accept it as if it is a loan it is clear that ownership is transferred to you since there is no impediment that we disagree as to the cause of giving and accepting.

The Post-Glossator Bartolus (1313–57), in his comment on Digest 12.1.18, attempts a reconciliation of the two texts in the following way: Error in the type of contract prevents the contract forming and ownership passing, the latter being remedied by the consumption of the thing. And so to give rise to a petition or action depends on the intention of the recipient while to give rise to the counter action (exceptio) depends on intention of giving. This is what this excellent and notable law says. The opinion is that the error about the legal reason (causa) does not affect the transfer of ownership (see D.41.1.36). Solution: the Gloss says: in this case what is certain is that he [the seller] wanted to transfer ownership for a reason other than donation. This certainly contains a clue. Therefore some say that there [that is, in D.41.1.36] the legal ground (causa) had preceded the payment, but here [D.12.1.18] the legal ground was simultaneous with the transfer. This understandable solution can be true.

The distinctio induced out of the facts according to Bartolus, who in turn refers to earlier comments made by the Glossators, is with regard to the time when the legal ground for the transfer is made. Either it precedes the payment, whereby the transfer is valid, or it is simultaneous and the transfer is not valid. The texts themselves do not say this and so the solution is arrived at entirely through the use of the dialectical method by the medieval jurist. But Bartolus does not stop there. He goes on to make a further analysis: What in fact is said here is that error with regard to the legal ground (causa) prevents the transfer of ownership, where you understand that transfer does not liberate the

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debt. If then the debt is liberated, error with regard to the legal ground does not impede the transfer of ownership, as in D.41.1.36; but, on the contrary, this solution [D.12.1.18] does not lead to the liberation of the debt. And this is what the Gloss was wanting to say where the promise, or debt, precedes what is said to be the solution that results in liberation from the debt. This is also the opinion of Jacobus de Arena. Oldradus de Ponte says the contrary with regard to D.41.1.36, that there it says both causes are aiming for the same outcome while here [D.12.1.18] it is aiming for different outcomes. This solution is good with regard to the principle, see D.41.1.36, but not with regard to result and so one should stay with the solution given above.

Either the debt is not liberated and the transfer is prevented (D.12.1.18) or it is liberated and the transfer is valid (D.41.1.36). Bartolus then goes on to make a further distinction: When however the error impedes the transfer of ownership, then the situation is clearly set out in the comment attached to D.12.1.41 and more fully in the one attached to D.1.19.1. Secondly, see the opinion in C.4.6.7 where it is said of the legal ground (ob causam) that what has been done by one party should not be taken into account. The true solution is that this applies where it was of benefit to him, but if no benefit it should be taken into account, as is the case here [ie in D.12.1.18]. For the amount given to the other receiver needs to be taken into account; with regard to the counter action (exceptio), the amount given by the transferor needs to be taken into account while the amount given to the receiver does not (D.41.1.36).

Here the distinction made is with regard to benefit. If there was no benefit then D.12.1.18 applies, but if there is a benefit then it is a matter for D.41.1.36. Bartolus next moves towards a more general analysis of these two texts (with reference to others as well), but again isolating a number of conceptual and institutional focal points: However five points must be considered with regard to this legal text [that is, D.12.1.18]. First, the type of contract, as this is impaired by an error with regard to its legal ground. Secondly, the transfer of ownership, which is also impaired by the error with regard to the legal ground. Thirdly, consumption of the transferred property, and while this will rectify the transfer of ownership, it will not however rectify the invalid contract arising out of the lack of consensus, as here [that is, D.12.1.18], just as also it does not rectify an invalid contract as a result of a complete lack of consensus (as you see in the comment attached to D.12.1.12). Fourthly, the action (actio) must be considered, and this because the will (animus) of the person receiving must be taken into account, in the amount made against him. Fifthly, the counter action (exceptio) must be considered, and this is because the will of the giver must be taken into account, in the amount made against him, and therefore in the last two cases of this text the exceptio does not arise because neither will (animus) covers this. The Gloss asks in respect of the first part of this legal text: if the money is not consumed, is it possible to oppose the vindication claim (rei vindicatio) with an exceptio? The Gloss rightly says that is so, as the case is dealt with in D.39.5.25.

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Finally Bartolus brings into play what is essentially a procedural point with respect to the disagreement itself: I ask, by what means can we deal with this disagreement? My response is this: if indeed the parties are agreed with regard to what they disagree, the position is not in doubt, and we are on firm ground. If they are not agreed because the defendant says that ab initio each consented that the intention (animus) was to make a gift, while the claimant (actor) says the intention was to make a loan, then it is certain that the disagreement must be proved, otherwise it is to be decided in terms of what is probable (see D.45.1.80 and the note to D.45.1.83.1).

2.

SCHOLASTIC EPISTEMOLOGY

To the modern legal mind all of this might seem not just laborious and heavy going, but equally a rather obvious and basic form of legal analysis. To take such a view would be to make a fundamental historiographical error. The work of the medieval Italian jurists (the Glossators and Post-Glossators or Commentators) has to be seen in the context of their own time and the epistemological mentality within which they were working. Several points have already been emphasised and once these points are appreciated the link between the dialectical method of the medieval jurists and epistemological context becomes clear. They were struggling to make sense of notions and concepts that must have been, at least at first, extremely difficult to understand, given that the social and political context of medieval Europe was very different from that of Ancient Rome. In addition, there were of course contradictions and inconsistencies in the texts, despite Justinian’s assertion. Nevertheless, there were some fundamental epistemological developments during this medieval period. The first was the influence of the rediscovered works of Aristotle, which introduced a new kind of logic (logica nova) into the methodological approach of the medieval jurists. This new approach was the syllogism. As Andrea Errera explains: In short the syllogism consists, then, in a technique thanks to which from two predicative propositions (major premise and minor premise) it is possible to infer a third predictive proposition (conclusion) based on a principle of identity and difference (dictum de omni et de nullo), that is to say on the principle according to which two identical terms each identical to a third are identical to each other (identity) and – in contrast – two terms, one of which is identical to a third, are different between them (difference).16

Errera (2006), at 41.

16

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An example might be ‘this body is white and therefore it is not black’ (hoc corpus est album, ergo non est nigrum).17 Thus: [The] deduction that arises out of this reasoning is legitimised thanks to the existence of a common term in the two premises (middle term) that have the function of linking the other two terms, major and minor, and permitting, then, to infer a conclusion that – given the truth of the premises – must in turn be necessarily true.18

This medieval understanding of Aristotle’s logic was a major development because, as Errera points out, it permitted the jurists to go beyond the text itself and to embrace factual situations that were not contemplated by the text.19 It permitted extension of a text to analogous cases, allowing the Post-Glossators easily to apply Roman law to the political and social issues of their time. It equally permitted a subtle change with respect to the notion of authority (auctoritas). The syllogism offered the medieval jurists the ability to construct an epistemological validity beyond the existence of the ancient text itself; legal reasoning could be seen as having its own auctoritas and this in turn led to the idea of the communis opinio. A majority or common opinion was, thanks to the rigour of reasoning, its own authority.20 The impact of method – the syllogism – on substantive legal knowledge is thus one that makes method and epistemology indissociable: what started out as a brief résumé in Roman times, the regulae iuris, was elevated to an ontological status; they were the foundation of legal knowledge. By the sixteenth century these regulae were becoming not just the fundamental principia upon which all legal knowledge was based, but axiomata iuris. The methodological achievements of the medieval jurists, especially the Post-Glossators (or Commentators), are well summarised in a work on legal method by Mattheus Gribaldi Mofa (1505–64). He first identified the central importance of the dialectical analysis: Praemitto, scindo, sumo casumque figuro; Perlego, do causas, connoto, objicio (I do a preliminary reading, I divide up, I summarise and form cases; I examine thoroughly, I give reasons, I gain understanding, I oppose).21 He then went on to assert that Omnem disciplinam generalibus constare praeceptis, quae ignorare non licet (all disciplines are made up of

Ibid, at 50. Ibid. 19 Ibid, at 47. 20 Ibid, at 51. It was of course appreciated that the syllogism itself was not a matter of truth, it was only a method, and so ambiguous premises could only result in ambiguous or probable solutions; accordingly consensus (common opinion) provided the extra epistemological validity: see Errera, at 57–63. 21 Mattheus Gribaldi Mofa, De method ac ratione studendi libri, 1554, at 34–6. 17 18

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precepts whose ignorance is not permitted).22 Gribaldi Mofa describes these precepts as regulae seu axiomata iuris which obviously form the foundation for the syllogism (plane ex regulis componimus syllogismos) whose conclusions no one can dispute.23 Accordingly, the second epistemological development, linked again to the influence of Aristotle’s work and the logica nova, was the idea that each science (scientia) had its own principles (propria principia) from which all new knowledge must be made to flow.24 The fourteenth-century jurist Baldus (1327–1400) was instrumental in this emphasis on principles: Qui vult scire rei, debet scire principia rei (he who wants to know things ought to know its principles) (Chapter 4, section 3).25 What were, then, the propria principia underpinning legal knowledge? Roman law itself appeared to give the answer, namely the regulae iuris – a collection of more than 200 maxims – which formed the last title of the Digest.26 In fact the Roman jurists did not seem to think of these regulae as giving expression to legal knowledge; they were just brief summaries of law whose source was elsewhere.27 But with the adoption of syllogistic logic as the prime legal method, their status changed. ‘They were’, says Peter Stein, ‘the “authentic” rules of law, acknowledged as such in the authoritative texts of both laws [Roman and Canon law] and so continually cited in argument’.28 They became the axiomata of legal knowledge. The position is well summed up by Mattheus Gribaldi Mofa: Plane ignorari universalia non possunt, sine quibus ad particularium notitiam minime pervenitur (it is quite clear now that universal principles cannot be ignored because without them knowledge of particular things cannot be attained).29 The third development, again closely linked to the first two, was the need for precise definitions. The Roman jurists had been dubious about embedding law in a set of precise definitions because, according to one regula iuris, all definitions were dangerous since they could be undermined by reality.30 However, once method had become based on the syllogism then, if conclusions were to be reliable, they had to flow from principia that had very clearly defined concepts. It was not the norm (regula) itself which formed the premise but

Ibid, at 5. Ibid, at 17–19. 24 Ibid, at 73. 25 Comment on D.1.1.1. 26 D.50.17. 27 D.50.17.1. 28 Stein (1966), at 153. 29 Gribaldi Mofa, De methodo ac ratione studendi (1541), Book I chapter III (at 6). 30 D.50.17.202. 22 23

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the clarity of the words (lucida verba).31 As Gribaldi Mofa was subsequently to point out, there is nothing more important in legislation than clarity, otherwise only uncertainty will arise (Cum enim in lege nihil magis desideretur quam claritas, et ex genere incertitudo plerunque nascatur).32 The Romans had of course been aware that words could be ambiguous and that there was a distinction to be made between words (verba) and intention (sententia)33 and between words (verba) and their force (vis) and power (potestas) (see Chapter 4, section 4).34 However, it was the medieval jurists that began to develop a more methodological approach to interpretation. Baldus talked about interpretatio being a matter of determining the meaning behind the words rather than being founded on a literal approach: Interpretatio non debet fieri ad literam, sed ad sensium, quia sensus verborum praevalet.35 He also mentions the notion of ratio legis, which could be used to tease out implied meanings.36 Another Post-Glossator even seems to suggest that interpretation is a source of law (interpretatio facit ius).37 As Ian Maclean points out, it was the Italian medieval jurists who fashioned a whole technical vocabulary with regard to interpretation.38 However, even before the end of the medieval world, the Aristotelian epistemology was entering a period of crisis thanks to the influence of a new breed of philosophers such as Roger Bacon (1214–92) and William of Ockham (1287–1347). It was not the syllogism that was the foundation of all knowledge but empiricism.39 Andrea Errera asserts that this completely undermined the epistemological foundation of the mos Italicus, with the result that it went into terminal decline, which in turn led to the birth of a new doctrinal method (nuovo indirizzo dottrinale) that attracted the title of mos Gallicus.40 That there were methodological and epistemological changes in the sixteenth century cannot be doubted. However, it would be a great mistake to think that the methods and epistemological assumptions of the Post-Glossators were eclipsed by these developments. Indeed, the central role of the syllogism, with its definitional requirements, was to be taken to a new level of sophistication in the centuries that followed the era of the humanists (as will be seen).

Errera (2006), at 99. Gribladi Mofa (1541), Book I, chapter XI (at 32). 33 D.50.16.6.1; D.50.17.96. 34 D.1.3.17. 35 Comment on C.6.28.3. 36 Comment on C6.28.4. 37 Paulus de Castro, comment on D.1.3.9. 38 Maclean (1992), at 114. 39 Errera (2006), at 123–4. 40 Ibid. 31 32

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HERMENEUTICAL TURN (ARS HERMENEUTICA)

Gribaldi Mofa was writing at a time of epistemological and methodological change thanks to a new wave of jurists who emerged during the fifteenth century and developed into a full school, so to speak, in the century that followed. The change was one involving a linguistic turn which was not in itself confined to law; it was part of a wider movement that attracted the name humanism (studia humanitatis) and which was motivated by the rallying cry of ad fontes, or ‘back to the original texts’.41 Its origin is associated with the Italian philologist Lorenzo Valla (1407–57) who was essentially a theologist – although he is recorded as saying that he did not belong to any discipline (sectae)42 – but who was also, says Donald Kelley, bound to have an encounter with the civil law.43 This was not surprising given that the Roman legal texts were nearly as ‘sacred’ as the theological ones and the only way in which the true Roman law – the disciplina aurea – could be known was through these texts.44 This ‘true’ Roman law was for Valla, as it would be for his successors, the work of the classical jurists: that is to say, the prisci illi jurisconsulti (who were perhaps a secular equivalent of the prisci theologi), whose texts were entirely a product of Roman culture. Accordingly, a whole new approach towards the Roman law texts was in the making, and this new approach was associated with a school of French jurists. There thus developed a French ‘method’ (mos Gallicus) that was to be contrasted with the methods of the Italian medieval jurists, particularly the Post-Glossators (mos Italicus).45 These methodological and epistemological developments were fourfold (the fourth to be discussed later in this chapter, at section 5). First, the Corpus Iuris itself came to be viewed differently; thanks to the humanists’ knowledge of the ancient sources, ‘they placed Justinian’s compilation in its historical context’. And this ‘approach represented one of the biggest breaks in medieval methods: the humanists thus removed the Corpus Iuris Civilis from its timelessness, underlining the different stages of the construction of the legal system’.46 Xavier Prévost, writing about Jacques Cujas (1522–90), asserts that this ‘historical analysis of law is indeed one of the main contributions of legal humanism and in particular of Cujas’ work’.47 In terms of method, it was a matter of restoring various fragments in the Corpus Iuris into their original 43 44 45 46 47 41 42

Bedouelle (2007), at 78–81. Kelley (1970), at 28. Ibid, at 39. Ibid, at 39–40. Jones (1940), at 33–5. Prévost (2016), at 91. Ibid, at 97.

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order and texts to their original purity, for many had been altered (as we have noted) by the compilers of the Justinian project in order to make them conform to the law of that period.48 Donald Kelley regards these exercises by the French humanist jurists as contributing not just to legal knowledge but to history itself. ‘At the very least’, he says, ‘it may be concluded that humanism, or rather the scholarly aspect of humanism which for five centuries European scholars have called philology, created the most basic attitudes which have gone into the making of historicism’.49 Associated with this development, then, is a second one, namely the use of philological methods in order to achieve the aim of discovering textual purity. This method ‘involved the historical interpretation of texts in the light of the humanist encyclopedia, which by the sixteenth century had come to encompass not only the liberal arts but such disciplines as philosophy, law, and medicine’.50 The epistemological importance of this ‘new’ approach was the focus on language; this was the primary means of understanding reality and the tool for interpreting the past.51 Some of the humanist jurists thought that the Roman sources had been corrupted not just by the medieval jurists, with their glosses and commentaries, but also, of course, by the team assembled by Justinian to compile the Digest.52 The philological approach, with its emphasis on writing style and grammar, was employed in order to identify these interpolations. More generally, this philological approach reflected an orientation towards hermeneutics, that is, towards the idea that words are mere signifiers of something deeper. This is well captured by Andreas Alciatus’ (1492–1550) remark verba significant, res significantur (words signify, things are signified).53 This is not to claim that the medieval Italian jurists were not practising ars hemeneutica when they were explaining and interpreting the Roman texts; the older jurists were evidently trying to fathom the meaning of words. However, the humanists were interdisciplinary in their attitude and, as Jones said of Alciatus, he ‘felt that nothing but good could come from an alliance between law and humanities; that, indeed, knowledge of classical literature was essential for the understanding of much of the law’.54 This clearly was something of a break with the medieval attitude that non licet allegare nisi Iustiniani. The third methodological development, associated with the previous two, was the search and correction of errors (emendatio) in the original sources 50 51 52 53 54 48 49

Ibid, at 97–8. Kelley (1970), at 302. Ibid, at 64. Ibid, at 53, 63. Ibid, at 110. See eg the writings of François Douaren (1509–59). A Alciatus, De Verborum Significatione, at 104. Jones (1940), at 31.

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themselves and in the subsequent writings of the medieval jurists, whose lack of knowledge of the ancient Roman law, and of the Greek language, often led them into misunderstandings. Quod non intellexit Accursius propter ignorantiam juris antiqui, said Cujas.55 However, sometimes Accursius was not to blame, since the texts he used were themselves corrupted.56 Such corrections involved the collation (collatio) of as many texts as possible and the comparing of one with another, such a procedure often bringing to light errors made by copyists. Philological methods were also important in making textual emendations; however, as Douglas Osler has shown, not all of these changes – these humanist interpolations – were based on sound research.57 Indeed, Osler is damning in his conclusion. ‘So when we say that Alciatus was the first to introduce the philological method into the study of the Roman legal sources’, he writes, ‘we must be clear that we are speaking about humanist philology – in reality a mere parody of philology, if not indeed an oxymoron’.58 Osler may be right about the quality of this humanist philology, but he is of course looking at it through contemporary epistemological eyes, which is a bit like historians of science blaming sixteenth-century natural philosophers for indulging in alchemy.

4.

INTERPRETATION (DE VERBORUM SIGNIFICATIONE)

Despite this criticism, the humanist methods did achieve a more accurate version of the Corpus Iuris and perhaps even a ‘revolution’ in the methodology of law and history.59 Yet, as James Gordley has noted, these new methods were not actually incompatible with the dialectical and exegetical methods of the medieval jurists.60 The difference was that the opinions of the latter were no longer relevant when it came to teaching law, since the humanist approach was to go back to the original Roman texts. Interpretation – ars hemeneutica – was now the key method and the humanists were interested in examining only the Roman sources. Indeed, the effect in the law schools was evident. ‘It was found’, said Walter Jones, ‘that twenty times as much ground could be covered as was possible to teachers who spent no less than three months

55 Accursius’ ignorance of the old law led him to misunderstand texts: see Prévost (2016), at 97. See also Gordley (2013), at 112–13. 56 Prévost (2016), at 98. 57 Osler (2016). 58 Ibid, at 56. 59 Gordley (2013), at 118. 60 Ibid, at 119.

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over a single rubric and took a year to comment on four or five passages’.61 The idea of ad fontes had therefore something of a practical orientation, since what ‘was needed was to clear the ground rather than to cumber it with new commentaries’.62 This hermeneutical turn also had a certain professional relevance in that attention became focused on the methods of interpreting legal texts. The Roman sources, as has been seen, contained some basic ideas which were further developed by the Post-Glossators; Baldus for example stressed the importance of sensus rather than an interpretation ad literam.63 He also suggested that there was a difference between meaning (significatio) and interpretation (interpretatio).64 These kinds of points were to receive much fuller treatment during the sixteenth century,65 and this development was marked by a shift of emphasis in terms of commentaries towards the penultimate title of the Digest, which is devoted to the meaning of words (de verborum significatione).66 This shift of attention has, however, to be seen in the context of the broader linguistic turn – one that encompassed an increased interest not just in interpretation and meaning but in a growing critical tendency that was to become, in the case of some early Renaissance jurists, quite hostile. Such a shift equally necessitated a shift in method since the dialectical and syllogistic analyses, although by no means irrelevant, were schemes of intelligibility that were inadequate in themselves to meet the changing tasks provoked by the literary and historical projects that were to preoccupy many of the humanists. As will be seen, it was not just interpretatio that was a vehicle for new approaches; there was in this same period a growing interest in taxonomy and system – in what might be termed a structuralist turn. However, if one focuses first on interpretation, one can begin to see a more theorised approach being adopted by jurists at the start of the sixteenth century. Pietro Gammaro (1480–1528), for example, wrote: In legal interpretation of legislation the intention (mens) of the legislator is the primary consideration and should be avoided on as few occasions as possible even when the words (verba) seem to contradict it (D.27.1.13.2); the same is true when the words of the legislation have a meaning (sensum) that is contrary to what the legislator wishes (D.1.3.17; Decretal 5.40.6); indeed it is the intention (intentio) to

Jones (1940), at 32. Ibid. 63 Comment on C.6.28.3. 64 Comment on C.6.38pr. 65 See generally Maclean (1992). 66 D.50.16. 61 62

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which one defers and not the intention of the words (non autem intentio verbis) (see Decretal 2.28.41).67

Gammaro went on to say: When we do not have the intention (mentum) we interpret the words according to the commonly accepted meaning of men (communi hominum acceptione) (see D.32.1.52.4 and its gloss, D.50.16.162.1 and D.33.7.18.2). I think that this is in accord with right reason (recta ratione) in order that the properties (proprictates) of the words are assigned to a commonly understood vocabulary (communem intellectus vocabulis) through which a single meaning is possible and promoted.68

Many of these notions are of course to be found in the Roman sources, but scattered about and not forming the basis of any generalised rule or theory of interpretation. The Renaissance, however, saw a flourishing of jurists reflecting on verba, mens legislatoris and ratio legis and the relationship between these terms.69 Nevertheless, the notion of ratio legis proved difficult to distinguish from mens, mens legislatoris and voluntas. Perhaps the most interesting difference hinted at comes from the sixteenth-century Italian jurist Alessandro Turamini (1556–1605), who indicated that there was a danger in seeing legislation only as the product of the will of the emperor (imperantium placito) and without any ratio. Should that be the case, then, he said, there was the possibility of a right of theft (ius latrocinari), of adultery (ius adulterari) and of false testimony (ius falso supponere testamenta) being established should an emperor wish it.70 He also suggested that legislation should have a useful purpose and if not, it is not legislation (ac ideo legislator legem sine utilitate constituendo, nec legem constituit, quoniam inutilis esse non potest), which hints at the idea that utility (function) ought to be a factor within the notion of ratio.71 These ideas add a third element, then, to the dialectic between verba and mens; but his hints do not seem to have become mainstream. Accordingly, one of the leading jurists of this period, Hugues Doneau (1527–91), ended up seemingly merging the various terms: Ratio legis is to be understood as the wider legislative intention (sententia) [rather] than the words (verba), as constituting what is certain in the facts of the cases in

67 PA Gammero, Legalis dialectica in qua de modo argumentandi et locis argumentorum (1522), Book I, § De loco ab interpretatione seu ethimologia. 68 Ibid. 69 See Maclean (1992), at 142–58. 70 A Turamini, Opera Omnia, at 34. 71 Ibid, at 51.

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which it finds expression, but which finds its main expression in the other cases that are not relevant. For, as I have just said above, ratio legis is itself the intention (sententiam) of the law, that is what the law wishes to obtain, and for which it exists […] ius is what the legislative text wishes (ius est quod lex voluit).72

Indeed, even Turamini said that ratio is nothing but voluntas and sententia legis.73 Ian Maclean sees this circularity as leading back to the views of the Glossators.74 The fear among the jurists was that they were only interpreters and thus could not add to the text in any way. This of course limits their relationship with the textual sources, and so ‘it seems that jurists can articulate the problem without either being able to solve it or necessarily being interested in doing so’.75 Maclean concludes that it was the distinctions themselves that mattered and if ‘they could be used meaningfully in given contexts and lead to practical results, their logical and consequential failings could be ignored’.76 The tools of interpretation were in the end, more dialectical (verba contra mentem) than hermeneutical (et significatio et intellectus). Perhaps one never really escapes one method or approach for another.

5.

STRUCTURAL TURN (IUS CIVILE IN ARTEM REDACTUM)

The fourth methodological development associated with the humanists is rather different to the ars hermeneutical scheme. Cicero had argued that law should be studied (scientia) as an organic whole (ars) and instead of remaining dispersed and scattered (dispersa et dissipata), it should be reduced to a uniform rational whole (quam rem dissolutam divulsamque conglutinaret et ratione quadam constringeret) (Chapter 3, section 2).77 The problem, however, was that there was not much order in the Roman sources as compiled by Justinian’s commission. Both the Digest and the Code seemed to reflect Cicero’s complaint of a body of knowledge that is dispersed and scattered with little rationality despite the underlying taxonomical ideas and common denominators (tamen res ipsa loquitur, Tribonianum in tractando cuiusque tituli argumento, nullam ordinis, aut methodi rationem habuisse) (no method or order).78 The one exception was the Institutes of Justinian, known (because

H Doneau, Commentarii De Jure Civili, Book I, chapter XIIII, § 6. A Turamini, Opera Omnia, at 33. 74 Maclean (1992), at 156. 75 Ibid, at 158. 76 Ibid. 77 Cicero, De Oratore, Book 1, section 42, § 188. 78 F Douaran, Epistula de ratione docendi discendique iuris (1544). 72 73

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of extracts in the Digest and Justinian’s own comments) to be based on the classical second century work by Gaius (cf Chapter 3, section 3). As Peter Stein notes, the ‘humanists were determined to fulfil Cicero’s dream’,79 and this is particularly evident in the writings of François Douaren (1509–59), who quotes Cicero at the very beginning of his commentaries on the Corpus Iuris: Cicero quidem rationem docet Jus civile in artem redigendo.80 And thus one needs to start at the universal level and work downwards towards practical problems: in universalidus methodo, in singularibus exercitatione.81 It was a matter of first identifying a number of generic categories and then dividing up each of these categories into their various species, finally giving each their proper definition.82 Douaren accordingly asserts that it is the Institutes which should be the vehicle for understanding the Roman sources: Cum igitur haec perpenderet Tribonianus, quatuor institutionum libris, quicquid de personas, rebus, et actionis ad Pandectarum interpretationem necessarium tyronibus videbatur.83 One of the principal works that takes up this challenge of rearranging the whole of the Roman sources along the schematic lines of the Institutes is the Commentarii de jure civili by Hugues Doneau (Hugo Donellus) (1527–91). This jurist was of the view that in failing to separate the law of actions from the substantive law of persons and law of things – for example, in the Digest obligations and actions are presented together in the same section84 – it was impossible for anyone to know their ‘rights’ (ius) prior to any litigation process. In addition, the complete lack of order and the fragmentation of the legal material in the Digest led only to confusion (ex qua confusione accidere necesse est) and lack of understanding (non intelliguntur),85 for singular subjects are treated before more generic ones and without themselves being grouped within any relevant general title (tamen in singulis titulis de rebus ad titulum pertinentibus hunc nullum esse, sed summam rerum confusionem, agnoscere coguntur).86 Doneau’s aim was, therefore, to permit people to know their rights (iuris nostri) – which in the Roman sources could be deduced from judgments (quod in judicium deducere possemus) – through rational analysis

Stein (1999), at 80. F Douaran, Commentarii, Chapter II, De inscriptione Pendactarum item Digestorum. 81 Epistula de ratione docendi discendique iuris (1544). 82 Commentarii, Chapter II, De inscriptione Pendactarum item Digestorum. 83 F Douaran, Commentarii, Chapter LV, De Pandectarum compositione, ordine, ac methodo. 84 D.44.7. 85 H Doneau, Commentarii de jure civili, Book I, Chapter I, § 10. 86 Ibid. 79 80

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before proceeding to the means by which these rights might be obtained (cognitionem iuris cuiusque praecedere oportere).87 One might note equally how Doneau was not just rearranging the Roman sources through the use of the institutional scheme but also viewing law through the concept of an individual right. Thus he said: Nature, as I have said, teaches us that it is about giving each his right and how to obtain it and the main question is, in order to give each his right, what rights do we want to bestow; next is the means of obtaining them. This said, it has to be asked what kind of right each person has and what are the reasons for obtaining it.88

He then went on to refer to the institutional scheme: Gaius explains this division: he shows that they are founded on these things; namely the rights each has as a person (in persona) and the rights each has in external things (de rebus): they are obtained, however, through the law of actions (in actionibus), as will be set out in more detail in its own part [of this work], with the explanation of private rights, when we come to them.89

And he concluded by setting out his plan: That being the case, we will have first defined these rights. And so from this definition, as one understands it today, all rights arise from persons (ad personas), from things (ad res) or from actions (ad actiones); therefore, thanks to the first two, the exact right of each person is set out; and thanks to the third the means by which it is obtained is explained. To recap, I have said this, that our rights set out above rest on these things: the whole nature and doctrine is set out in order to ask what our right is as persons (in personas), as to things (in rebus) or as to actions (in actionibus), how they are made so as to become ours, and once made how long they remain our rights.90

The French legal historian and Roman lawyer Michel Villey (1914–88) said of Doneau that his work was the best example of a system built upon the Gaius institutional plan, but that it profoundly changed its nature. Whereas Gaius was classifying things, Doneau was classifying rights.91 There had been a movement from the Institutes being a kind of ‘sociological’ map reflecting what was perceived as a social reality consisting of persons, things and legal institutions to an abstract model from which the rights (iura) of individuals could be deduced. Ibid, Book I, Chapter I, § 2. Ibid, Book II, Chapter II, § 3. 89 Ibid. 90 Ibid. 91 Villey (2006), at 476. 87 88

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121

MATHEMATICAL TURN (MOS MATHEMATICUS)

The centuries that followed Doneau and the humanist writers experienced what might be described as a conceptual hardening of this abstract model. One should not be surprised by this development because the sixteenth century also witnessed an important epistemological change. The auctoritas upon which the power of law was founded in the medieval age was twofold: first it was, as we have seen, textual, that is to say the texts themselves had an absolute authority; second, there was the view that where there was society there was automatically law, summed up by the expression ubi societas ibi ius (not actually a medieval but a seventeenth-century maxim).92 Both of these foundations were shattered by the sixteenth-century humanists. The historical turn largely destroyed the textual epistemology, and the rise of individual rights thinking – reflected in the changing meaning of the word ius – undermined the idea that the authority of law was rooted in the existence itself of society. Did ‘society’ actually exist or were there only individual men and women?93 What was needed, then, was a new epistemology to replace the old ones, and this was to be found in the notion of human rationality (recta ratio) given expression in systems thinking, the epistemological power of which was founded in coherence. Once the ‘territory’ (persona and res) had become the ‘map’ (iura), it found itself in a similar position to theology, both grounding their epistemological justification through an analogy with mathematics. Yet what were the ontological elements of this system? Looking at the position from a modern viewpoint it is tempting to say rules (regulae), as indeed we have seen with the sixteenth-century writer Mattheus Gribaldi Mofa. But in Roman law itself the position is by no means clear since, as we have seen, the Romans seemed to have distrusted rules. Non ex regula ius sumatur, sed ex iure quod is regula fiat (law does not arise out of rules but rules arise out of law).94 They are brief summaries of the law.95 The position becomes much more complicated when, in the later period of Roman law, legislation – which of course expresses itself in written rules (lex) – increasingly takes over as the major source of law and, in turn, first becomes incorporated into the notion of ius, and then begins to determine its ontology (see Chapter 4, section 3).96 Whether this ontological transformation had been completed by the sixteenth 92 Henrici de Cocceji: Grotius illustratus: seu Commentarii ad Hugonis Grotii De jure belli et pacis libros tres in quibus jus naturæ & gentium, item juris publici præcipua explicantur. (1744), comment attached to Prolegomena, § VIII. 93 See further on this question Samuel (2018), at 65–7. 94 D.50.17.1. 95 Ibid. 96 Schiavone (2017), at 354–74.

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century is uncertain. The medieval commentators might well have used words such as regula and principium – indeed, Baldus said that all rules arise out of law (regula omnis debet esse iuris)97 – but they equally matched these terms against such expressions as ex facto ius oritur.98 According to Doneau, Roman law was a matter of rights (iura), but what defined these rights? Where are they located? Doneau seems to have seen them as being inherent in people (personae) and in things (res), and thus he says of the rights attaching to persons that they are fourfold and granted by nature (Haec a natura cuique tributa). They are life (vita), bodily integrity (incolumitas corporis), liberty (libertas) and dignity (existimatio).99 As for things, the rights seem to dwell within the things themselves: ius nostrum … rebus versari.100 This is not to say that law never expresses itself through rules; the word regula is often to be found in Doneau’s commentaries, but these commentaries on Roman law run to 28 volumes. They are not describing a system that can be reduced to an Institutes-length volume and if anything, at least in form (if not of course in substance), they resemble the commentaries of the mos Italicus (although perhaps more elegantly written). It is in the next century that the idea of a system of rules began to assert itself. Villey regarded Hugo Grotius (1583–1645) as being the jurist who transformed the systems established by the humanist jurists into a system of rules, all such rules ultimately being derived from natural law. This natural law is the dictate of right reason (jus naturale est dictatum recte rationis)101 and is so unalterable that even God cannot change it (ut ne a Deo quidem mutari queat).102 In terms of method, said Villey, it was a matter of deducing rules of law from first moral axioms: it is, then, the law taking the form of a system of descending norms – an axiomatic system where the content of law becomes the slave of logic (est asservi à la logique).103 Certainly Grotius made reference to mathematics when, by way of analogy, he said that in thinking about rights he had withdrawn his mind from the world of fact, just as mathematicians do when they think about figures (sicut mathematici figuras a corporibus semotas considerant, ita me in jure tractando ab omni singulari facto abduxisse animum).104 But it is later jurists who develop this mathematical method. ‘There is no truth’, said Christian von Wolff (1679–1754), ‘unless it can be demonstrated

Comment on D.1.1.3 no 28. The expression is found in the commentaries of both Bartolus and Baldus. 99 Doneau, Commentarii, Book II, Chapter VIII, § 3. 100 Ibid, Book II, Chapter II, § 3. 101 H Grotius, De jure belli et pacis, Book I, Chapter I, § 10.1. 102 Ibid, § 10.5. 103 Villey (2006), at 550. 104 H Grotius, De jure belli et pacis, Prolegomena, § 58. 97 98

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as a necessary consequence of inference’ (Non admittus tanquam verum, nisi quod ex antea demonstratis per necessariam consequentiam infertur).105 As Walter Jones pointed out, no law book in the seventeenth century ‘was complete which did not bear the word methodus or methodice on its title page’.106 And, as he went on to say, one ‘of the most famous of these attempts to sketch out a new legal method was the Nova Methodus discendae docendaeque Iurisprudentiae written by Leibniz in 1667’.107 In this work, Leibniz (1646–1716) explains: Definitions or explanations of legal terms as set out in the books must be undertaken without mixing up propositions or rules (praeceptis seu regulis); this can be called: divisions of law (partitiones juris). The method is not alphabetic but precise and sound. And just as admirable as this ability to explain one thing by another using this sound and scientific (solida & naturali) method, is its ability to aid memorisation. Moreover the table (tabella) has a practical function by which it is possible to obtain at a first glance a total overview of the whole of the area of knowledge just as one does with a geographical map, then one can proceed to examine each particular province so to speak.108

In a letter he wrote to Hermann Conring (1606–81) in 1678, he was more precise about the mathematical logic: It appears here that the demonstration is a chain of definitions. For in the demonstration of any proposition one adds nothing other than definitions, axioms (to which I bring in here postulates), theorems already demonstrated and evidence-based facts. And since the theorems must be demonstrated and that all the axioms can be demonstrated except for those that are identical, the final result is that all truths can be reduced to definitions, identical propositions and evidence-based facts.109

Leibniz uses this method in Doctrina Conditionum (1669) to show how the Roman jurists were so profound in their reasoning and judgements that their consultations were almost akin to mathematical demonstrations (Atque ita ad Methodum venio … ut in certissimas ac pene mathematicas demonstrationes

105 C von Wolff, Jus Gentium Methodo Scientifica Pertractatum (1764 edition), Praefatio. 106 Jones (1940), at 39. 107 Ibid. 108 GW Leibniz, Nova methodus discendae docendaeque jurisprudentiae (JD Zunneri edition, 1667), Section II, § 7. There is now an English translation: GW Leibniz, The New Method of Learning and Teaching Jurisprudence (Talbot Publishing, 2017; translation Carmelo Massimo de Iuliis). 109 GW Leibniz, Letter, 19 March 1678, reproduced in French in P Boucher, Présentation, in GW Leibniz, Doctrina Conditionum (Institut Micel Villey, 1998; translation P Boucher) 5, at 29 (footnote 74).

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eorum responsa redigendi laboris potius sit in digerendo, quam supplendo ingenii).110 His point was that the Roman materials could be reconstructed in such a way as to expose their structural rationality and coherence and thus their inherent ability to act as a precise model from which solutions could be deduced as a matter of abstract logic. These solutions, then, depended not on experience or fact; they depended entirely upon demonstration of reason.111 Indeed, such logic could be employed to solve apparent contradictions in the Roman materials.112 In short, Leibniz produced a new kind of book (or books) that had transformed legal method from its dialectical and (or) hermeneutical orientation to one that was a matter of pure logic. As he said in Doctrina Conditionum: Doctrina de Conditionibus pars quaedam est logicae Juridicae.113 Nevertheless, this methodological and epistemological change had its roots in the work of earlier jurists. In fact, Leibniz himself mentioned the importance, inter alia, of Mattheus Gribaldi Mofa,114 whose work seems to have acted as a bridge between the old and new methods. Gribaldi, it might be recalled, emphasised the role both of the old dialectical methods and of rules as axioms (regulae seu axiomata), in turn drawing on the Post-Glossators’ recognition of principia as underpinning any science. If, therefore, methodology (syllogism) and epistemology (rational structuralism) were now combined around a structural model, the presentation of Roman law had to change. Two seventeenth-century jurists stand out in this respect. Jean Domat’s Loix Civiles reduced the whole of Roman law to a series of propositions,115 while Heineccius in his Elementa Iuris Civilis turned the Digest into a work of axioms and theorems.116 Neither of these books, however, employ the institutional scheme, although Domat did emphasise the distinction between persons and things in his Livre Préliminaire.117 However, it was Johann Heineccius (1681–1741), in a work that did reiterate the institutional plan, who perhaps encapsulated the spirit of the new axiomatic methodology: All the proper sciences reason by way of an intelligence of principles and their cohesion with posited conclusions. And just as those who teach the divine and sublime mathematics do not demand their audience to learn by heart thousands of problems, Leibniz, Proemium, Doctrina Conditionum. See Gordley (2013), at 176. 112 Boucher, Présentation, at 30. 113 Leibniz, Praeliminaria, Doctrina Conditionum. Whether of course his logic was actually convincing is another matter: see eg Gordley (2013), at 185­–6. 114 Leibniz, Proemium, Doctrina Conditionum. 115 Domat: 1625–96. 116 Heineccius: 1681–1741. 117 See Gordley (2013), at 141–147. 110 111

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but instead inculcate and demonstrate definitions, axioms and theorems by which of themselves any problem can be promptly solved. And so it is not for the jurist, I think, to stuff their audience's brains with decisions and cases …118

Here one can see how there had been a profound change in the way Roman law was envisaged and learned. The emphasis on cases and practical problems was replaced by a Roman law reduced to a set of abstract principles, no doubt rendering Roman law more accessible to the student. The problem, of course, was that this was no longer true Roman law. However, the jurist who definitively brought together the regulae iuris of Roman law and the institutional system of persons, things and actions was Robert Pothier (1699–1772). In his Pandectae Justinianeae, In Novum Ordinem Digestae (1748–52) he not only rearranged the final title of the Digest (de regulis iuris) according to the scheme of Gaius – and made a direct reference to this jurist (Scilicet haec tria universi juris privati objecta …)119 – but also added a great many further rules taken elsewhere from the Roman sources. In other words, Pothier compiled an exhaustive ‘code’ of Roman law rules. Yet, in noting the two famous warnings in the Roman title,120 Pothier alerted the reader that rules can be badly applied and thus dangerous; his object, then, was not to set out a code of ‘mathematical’ axioms; it was to help those studying law by reducing the universal law (universi juris) to a series of brief maxims (brevium sententiarum numerum ordine coactas) capable of being easily memorised (memoria facile retinendas studiosis tradimus).121 Nevertheless, whatever his purpose, Pothier, and Domat before him, helped set French law on course for codification and thus ‘[t]wo thirds of the provisions of the Code [Code civil, 1804] that Portalis’ committee drafted, as finally enacted, were taken from Domat and Pothier’.122

7.

SCIENTIFIC TURN (METHODUS DOGMATICUS)

The mathematical turn was to reach its apogee in the nineteenth century, although this turn was to be incorporated into the more generic expression of legal science. The idea of law as a science was not in itself new, but what was new was the emphasis on form. It was the legal form and not its substance that

118 J Heineccius, Elementa Juris Secundum Ordinem Institutionum (1725), at Praefatio. 119 R Pothier, Pandectae Justinianeae, In Novum Ordinem Digestae, Vol 23, Operis Divisio. 120 D.50.17.1 and 202. 121 Pothier, Regula prima, seu potius definitio Regulae. 122 Gordely (2013), at 152.

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became the sole epistemological and methodological focal point.123 The epistemological dimension was to be found in the idea that the mission of the jurists was to discover the fixed principles or axioms outside of any empirical experience, while the methodological aspect was inspired by mathematics whose principles served as the starting point for a chain of logico-deductive reasoning.124 This method attracted the label ‘dogmatic’ (méthode dogmatique), which has been defined by Professor Champeil-Desplats in the following way: The dogmatic approach consists, then, in reproducing, categorising, putting in order and systematising the law. Three principal results are expected: a) a manifestation of law as a unitary system complete and coherent in itself; b) classifications and categorisations created according to logical criteria (exhaustive, absence of overlap, and non-contradiction); c) the formulation of concepts and principles which reflect ‘the totality of the legal order being studied’ in such a way that they permit the resolution of any type of case.125

This méthode dogmatique came to dominate legal education in France during the twentieth century thanks to this view of legal science becoming entrenched in the textbooks aimed at students. These works, reflecting the tradition of Grotius, Domat and Pothier, continue to exhibit a taste for systematisation (‘le goût des systems’) and the formulation of principles even if the idea of a ius naturale has been abandoned in favour of monistic positivism.126 The spirit, say two French professors, is more theological than prudential.127 One might note also that the notion of ‘doctrine’ (la doctrine) is very precise in France; it is the writings of the French law professors on positive law, and it embraces only the law professionals writing on the law. A work on legal sociology, for example, does not belong within la doctrine.128 The situation was little different elsewhere in the civil law world.129 In Germany and Italy the emphasis was traditionally on legal science and, in Germany at least, this results in a methodology that recalls the spirit of Heineccius and Leibniz; it is a matter of definitions and the legal syllogism.130 Indeed, it was not just a matter of syllogistic logic; as we have seen, Heineccius

Jouanjan (2005), at 219. Champeil-Desplats (2016), at 63. 125 Ibid, at 87, quoting A Hernández Gil, Metodologia de la ciencia del derecho (Madrid, 1971), at 128. 126 Jestaz & Jamin (2004), at 165–7. 127 Ibid, at 167. 128 Ibid, at 171. 129 Ibid, at 303. 130 Schulze (2017), at 127. 123 124

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was contemptuous of the casuistic method, with its emphasis on cases and problems (see section 6 above). Some civil law authors say that things are changing in the present century as a result of influences from outside the civilian tradition.131 But legal method and epistemology form an attitude where law remains, in the civil law world, somewhat isolated from other disciplines.132 At best one might say that it is a matter of ‘moderated dogmatics’ (dogmatique bien tempérée).133 Or, put another way, contemporary textbooks – especially introductions to law – might not talk about the same things that were talked about a century earlier, but the manner of speaking and the conception of the law has not fundamentally changed.134 At least, this is the situation in the law faculties, if not actually the reality amongst practitioners and some judges.135 One is reminded of a Sir Henry Maine aphorism. He famously said that reform of the law in the sixteenth and seventeenth centuries was characterised by a reform of the law books.136 If he was alive today he might be tempted to say that it is a lack of any reform of the law books that is keeping alive, if not the mathematical turn, then the dogmatic method, with its emphasis on definition and the syllogism.

8.

DOGMATICS AND THE COMMON LAWYER

It might also be tempting to think that la méthode dogmatique was confined within the civil law tradition. Certainly there was no humanist school in England dedicated to systematising English common law, partly because there were no law faculties teaching the common law much before the twentieth century.137 Accordingly, there was no well-established group of academic jurists sensitive to developments taking place in continental universities and who would have been influential on the common lawyers.138 There were some jurists who tried to rethink the law along institutional lines; the most prominent example before the twentieth century is perhaps William Blackstone and his Commentaries on the Law of England (1765–9).139 But such a work, as Michael Lobban has shown, was faced with immense difficulties; the law in England did not consist of a set of rational regulae iuris that could be set out

133 134 135 136 137 138 139 131 132

See eg Infantino (2017). Jestaz & Jamin (2004), at 307. Ibid, at 303. Ancel (2014), at 146. Jamin (2014); and see also Ivainer (1988). Maine (1890), at 363. Baker (2019), at 181–3. Cf Baker (2003), at 12. Cairns (1984).

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in a systematic way140 and thus ‘the common law did not fit the alien structure and theory’.141 This is not to say that Blackstone went unread and, indeed, his Commentaries found much success in the United States.142 But what made the work attractive for the general reader ‘made [it] unattractive to the [English] profession’.143 Nevertheless, German legal thought’s influence on Anglo-American methodology and epistemological outlook during the nineteenth and early twentieth centuries must not be underestimated (see also Chapter 10, section 3). In 1846 a Parliamentary Select Committee on Legal Education in England and Ireland reported ‘that no Legal Education, worthy of the name, of a public nature, is at this moment to be had in either country’.144 They recommended that the civilian model should be followed, observing: That amongst other consequences of this want of scientific Legal Education, we are altogether deprived of a most important class, the Legists or Jurists of the Continent; men who, unembarrassed by the small practical interests of their profession, are enabled to apply themselves exclusively to Law as to a science, and to claim by their writings and decisions the reverence of their profession, not in one country only, but in all where such laws are administered […]145

In the United States legal education was, from the Committee’s point of view at any rate, much more advanced. However, Joseph Drake noted at the beginning of the twentieth century: we find many a Pucta among our American jurists, both on and off the bench, who apply the principles that have been worked out in the development of our common law as though they were ‘a priori’ mathematical axioms and not ‘a posteriori’ working formulae, which have to be constantly reshaped to adapt them to the ever changing requirements of a developing society.146

And he continued: Our jurists, our legislators and our courts, both bench and bar, are still holding fast to an historical ‘Naturrecht’ built up on the precedents of the Common Law, which

Lobban (1991), at 47. Ibid, at 34. 142 Watson (1994), at 14–16. 143 Lobban (1991), at 47. 144 Parliamentary Papers: Report of the Select Committee on Legal Education, 25 August 1846, at lvi. 145 Ibid, at lvii. 146 Drake (1913), at xxiii. 140 141

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has many analogies to the type of juristic thinking in vogue in Germany during the first half of the nineteenth century.147

This view was reflected in England much later in the century by a House of Lords judge. In a lecture, Lord Goff (1926–2016) said that when he was a student ‘there appeared to exist some judges who saw the law almost as a deductive science, a matter of finding the relevant authorities and applying them to the facts of particular cases’.148 He went on to say – writing in 1983 – that this was no longer the case. He said ‘that there is now a readiness among judges … to adapt and qualify [precedents] – not simply to achieve a personally desired result, but to ensure that principles are so stated as to embrace the legally just result on facts possibly not foreseen by those who had previously formulated them’.149

9.

DIALECTICAL TRADITION (DIALECTICA BRITANNICA)

Yet whatever the influence of continental legal dogmatics on the common lawyers during the nineteenth and twentieth centuries, the many centuries before this era do not display any kind of mos mathematicus movement. The absence of faculties is one reason, but there are others too. The procedure of the common law courts, with its emphasis on the jury, was far removed from the Romano-Canonical model that had become the norm within the civil law tradition.150 And thus, for many centuries, nobody ‘looked to litigation as a means of creating or refining legal doctrine, any more than one would watch of play chess in the expectation that new and more sophisticated rules of chess will emerge as more games are played’.151 This in turn meant that before the sixteenth century there was no substantive common law (iura) in the sense that such a notion might be understood by a jurist formed within Roman law learning.152 This is not to say that rational textbooks (Institutes) on law were unknown in England, but ‘codes and case-law do not sit well together’ and the alphabet rather than the institutional (Gaian) plan was adequate enough.153 This is not to say, either, that philosophical abstraction was completely absent from the

Ibid. Goff (1999), at 326. The lecture was delivered in 1983. 149 Ibid. 150 See generally Van Caenegem (1971). 151 Baker (2003), at 50. 152 Ibid. 153 Ibid, at 27. 147 148

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common law before the nineteenth century. From the fifteenth century, there was the view that the common law existed as a customary set of unwritten and timeless principles whose expression was to be found in the reasoning of the judges (ius dicere) when deciding a case.154 However, as Sir John Baker notes, the ‘supposition that common-law principles exist before anyone said what they are is a philosophical abstraction rather than a historical fact’.155 And, indeed, the notion that there are such ‘eternal truths is tantamount to fiction’.156 Yet it is probably no more fictitious than the civilian idea that legal principles (regulae iuris) are equivalent to mathematical axioms. What actually emerges from the English philosophical abstraction is the idea of ‘common learning’ based upon long usage, settled lines of precedents and received opinion in the inns of courts.157 This is particularly true of the sixteenth century, when the system was transformed. ‘Litigants’, notes Professor Baker, ‘were no longer universally content merely that their disputes should be resolved; many of them wanted judicial decisions on points of substance, with reasons’.158 Courts were, then, increasingly having to decide points of law. As a result, questions of law became separated from questions of fact and in 1585 a further Court of Exchequer Chamber was set up to hear error cases.159 In this court the judges deliberated on difficult questions of law and, along with formal and informal meetings in the inns of court, the ‘judges were thus exposed to collegial learning, and the interchange of opinion’.160 The method was dialectical and was oral. It was a matter of argument and debate about real and hypothetical problems where, in the inns of court moots, ‘the participants were less concerned to discover any right answer than to know whether a point was “good and arguable”, or “mootable”, a true “moot point”’.161 In fact, it was often difficult to detect the principles in the reports of actual cases because they were obscured by procedural issues.

Baker (2019), at 206. Ibid. 156 Ibid. 157 Ibid, at 209. 158 Baker (2003), at 50. 159 Baker (2019), at 147–8. 160 Baker (2003), at 413. 161 Ibid, at 470. One is perhaps reminded of this historical tradition by the words of a judge in a contemporary case: ‘I have explored with [counsel] in oral argument the grounds he seeks to rely on in answer to the defence case on this issue. I am satisfied that I have read and heard sufficient argument from both sides on that question to identify the points at issue, and to allow a sound conclusion to be reached’: Warby J in Alsaifi v Amunwa [2017] EWHC 1443, at para 65. 154 155

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And so ‘it was in the inns, rather than in Westminster Hall [the courts], that those principles were expounded and refined as a coherent body of law’.162 As for the cases themselves, they were not, before the eighteenth century if not the nineteenth century, precedents in the modern sense of the term.163 The primary decision was that of the jury and thus many cases were just formalities following the verdict of the jury.164 When cases involving points of law did arise, previous decisions were used in ‘a rather vague way when arguing in the court’.165 As Sir John Baker also reminds us, the whole litigation process was largely oral, including discussion and debates about points of law; no one, on the whole, relied upon books, and previous cases were produced from memory.166 Later, cases became a source of legal analogy rather than strict precedents, but by the eighteenth century the tendency was to follow them for the sake of stability and potential litigant expectation.167 In the nineteenth century the rule model was beginning to assert itself, as this well-known observation by a judge of the time indicates: Our common-law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedent; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised.168

The dialectical tradition was not, however, replaced or suppressed by this more precedent-orientated view previous decisions. The process remained – and indeed remains – one of argumentation before the judges, where one side, to reference the methods of the medieval Italian jurists, proffers a positio, contradicted by the other side with an oppositio, followed by a solutio, namely the judgment of the court. Take for example this exchange from a case of 1869.169 Counsel for the appellant asserts: Kingdon QC: This case comes within the authority of Durant v Kennett just decided, for it is found that the respondent is a member of the chapter, which is a corporation Ibid, at 471. Ibid, at 486–9. 164 Ibid, at 486. 165 Ibid, at 487. 166 Ibid. 167 Lobban (1991), at 83–4. 168 Parke J in Mirehouse v Rennell (1833) 1 Cl. & F 527, at 546. 169 Ford v Harington (1869) LR 5 CP 282. 162 163

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aggregate, and when there is a vacancy the new canon goes to the chapter and prays to be admitted, which shows that he occupies as a member of that body and that the property is in them.170

Counsel for the respondent replies: Philpott: This case is clearly distinguishable from Durant v Kennett: for it is found in terms that the house belongs to the respondent in respect of his canonry; he does not therefore occupy it as the naval knights of Windsor occupy their houses, only as a member of the general body …171

Kingdon QC, replying to this argument, is interrupted by an observation (if not a question) from one of the judges: [Willes J: I suppose the old chapters are descended from the regular clergy, and that originally therefore the property must have been held by them as a body.]172

To which counsel responds: The presumption therefore is that this house is the property of the chapter, and occupied by the respondent as a member of it, and the case does not shew anything inconsistent with this; the respondent therefore is not entitled to vote.173

After the arguments presented by counsel, each judge gives his own judgment, as the following extracts from these judgments indicate: Bovill CJ: The respondent in this case as one of the chapter, is a member of a corporation aggregate, and if his occupation were in that character alone it is clear that he would not be entitled to vote: the case would then fall within the decisions of Heath v Haynes and Durant v Kennett. In those two cases the Court came to the conclusion from the facts presented to it that the claimant occupied only as member of the corporation aggregate … [After considering various authorities] From these authorities it is clear that for many purposes a canon must be considered to hold his residentiary house in severalty, and upon the statement of this case I come to the

Ibid, at 283. Ibid. 172 Ibid, at 286. 173 Ibid. 170 171

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conclusion that the respondent holds his house as a corporation sole and in his own right, and is therefore entitled to vote […]174 Willes J: I am of the same opinion, and I adhere to what the Court has laid down in Durant v Kennett […]175 Keating J: I am of the same opinion, without at all wishing to depart from our decision in Durant v Kennett […]176 Brett J: I for some time doubted whether the facts of the case were sufficiently stated, but, with our knowledge of the constitution of capitular bodies, I think the statements amount to this: that the respondent was entitled by prescription to be elected and installed in one of the residences belonging to the canons, in right of his canonry, and when installed I think he had a freehold interest in it, and was entitled to a vote as owner. I am glad to find that the old case in Peckwell, vol. ii. p. 113, entirely supports our decision in Durant v Kennett; but it is in no way contrary to our present judgment, for the ground of the decision was that the claimant was shewn to occupy his house only because he was a member of the corporation aggregate, while here the respondent occupies as a corporation sole.177

This methodology has changed little since 1869 (and one might note also how there is a lack of collegiality in that each judge renders his or, now, her own opinion). Oral argument remains an essential part of the litigation process, even if counsel are now obliged to submit written summaries of their arguments before the hearing.178 The solution to a problem is not, then, deduced from a pre-existing model of legal axioms; it is a matter of argumentation between the various counsel and the judges. Indeed, this point is well illustrated in an observation made by a Court of Appeal judge in 2002: As I have indicated (paragraph 9) Miss O’Rourke accepts that the bystander may be taken to possess ‘some knowledge of the legal culture’. He would know of the central place accorded to oral argument in our common law adversarial system. This I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by a judge. That judges in fact change their mind under the influence of oral argument is not an arcane feature of the system; it is at the centre of it. Knowledge of it should, in my judgment, be attributed to the fair-minded and informed observer […]179

That judges do change their mind during the oral hearing is on occasion clear from a judgment itself. And sometimes this arises out of questions posed

Ibid. Ibid, at 288. 176 Ibid, at 290. 177 Ibid, at 290–1. 178 Practice Direction [1989] 1 All ER 891; and see also Lord Diplock in MV Yorke Motors v Edwards [1982] 1 WLR 444, at 446. 179 Laws LJ in Sengupta v GMC [2002] EWCA civ 1104, at para 38. 174 175

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by the judges to counsel, the responses received being, perhaps, somewhat unconvincing.180 The dialectical tradition is not just confined to case-law and precedent. One difference between pre-nineteenth and post-nineteenth-century common law is that there was a dramatic change in the source of law. The great majority of litigation disputes today involve the application and interpretation of legislation and this suggests a hermeneutical scheme of engagement. How does one engage with the text? Over the centuries the common law judges have struggled with the same kinds of issues as those identified by the continental scholars of Roman law.181 Does one focus on the literal meaning of the words (verba) or on the intention of the legislator (mens legislatoris or mens statuti)? Does one apply a narrow or a wide interpretation? Where, on those occasions, a court does wish to give a restricted definition to a word, a dialectical approach is often adopted. For example, the term ‘flood’ has been restricted by setting it in opposition to an ‘ingress of water’,182 while ‘state’ (of the premises) has been set against ‘layout’ (of the premises), thus allowing a majority in the House of Lords to avoid a politically sensitive result.183

10.

METHODOLOGY AND FORMALISM: SOME REFLECTIONS

As we shall see in Chapter 6, the twentieth century was to experience further methodological change stimulated by jurists working in the common law tradition. However, it might be useful to pause and to reflect upon the methodological developments within the civil law tradition from the Roman Corpus Iuris up to the end of the nineteenth century. One interesting aspect of this development is the way in which law, on the one hand, might well be described as one of the oldest social sciences,184 but on the other hand, never participated either methodologically or even epistemologically when the social sciences themselves – particularly sociology185 – emerged (or were constructed) during the nineteenth century.186 Whatever

180 See eg Bingham LJ in Blackpool & Fylde Aero Club Ltd v Blackpool BC [1990] 1 WLR 1195. 181 Baker (2019), at 221–5. 182 Young v Sun Alliance and London Insurance Ltd [1977] 1 WLR 104. 183 Birmingham CC v Oakley [2001] 1 AC 617. 184 Murphy (1997). See also Kelley (1990). 185 Berthelot (2005). 186 Jestaz & Jamin (2004), at 172–4.

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one thinks of the Heineccius vision of law (see section 6), it certainly cannot be described as a science rooted in the empirical. As Felix Cohen put it: Legal concepts (for example, corporations or property rights) are supernatural entities which do not have a verifiable existence except to the eyes of faith. Rules of law, which refer to these legal concepts, are not descriptions of empirical social facts (such as the customs of men or the customs of judges) nor yet statements of moral ideals, but are rather theorems in an independent system. It follows that a legal argument can never be refuted by a moral principle nor yet by any empirical fact. Jurisprudence, then, as an autonomous system of legal concepts, rules, and arguments, must be independent both of ethics and of such positive sciences as economics or psychology. In effect, it is a special branch of the science of transcendental nonsense.187

This is not to assert that this highly formalistic legal methodology is somehow separate from the methods of social science. As Annelise Riles has pointed out, ‘it is possible to understand legal activity in socio-legal terms as a realm of social and cultural practice in its own right’.188 Again, on this point, one might recall the words of Felix Cohen: If the understanding of any decision involves us necessarily in prophecy (and thus in history), then the notion of law as something that exists completely and systematically at any given moment in time is false. Law is a social process, a complex of human activities, and an adequate legal science must deal with human activity, with cause and effect, with the past and the future. Legal science, as traditionally conceived, attempts to give an instantaneous snapshot of an existing and completed system of rights and duties. Within that system there are no temporal processes, no cause and no effect, no past and no future.189

And he continued: A legal decision is thus conceived as a logical deduction from fixed principles. Its meaning is expressed only in terms of its logical consequences. A legal system, thus viewed, is as far removed from temporal activity as a system of pure geometry. In fact, jurisprudence is as much a part of pure mathematics as is algebra, unless it be conceived as a study of human behavior, – human behavior as it molds and is molded by judicial decisions. Legal systems, principles, rules, institutions, concepts, and decisions can be understood only as functions of human behavior.190

189 190 187 188

Cohen (1935), at 821. Riles (2019), at 798. Cohen (1935), at 844­–5. Ibid, at 845.

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As we shall see, this functional vision of the world of abstract legal concepts was to have a major impact on legal thinking, at least in the common law world. However, there is still a danger lurking behind the method associated with the mos geometricus view of law. In adopting the label la méthode dogmatique it does seem to confer on legal method an independence of its own. This is highly misleading since the dogmatic method cannot be placed alongside the grilles de lecture and schemes of intelligibility employed by social scientists (cf Chapter 2, section 6); it does not have some independent epistemological validity. It is an amalgam of such schemes and thus at the basis of la méthode dogmatique is a form of conceptual structuralism – the model of axioms and theorems needed to support a syllogistic logic – tempered by hermeneutical and dialectical approaches. In fact, this mixture gave rise to internal tensions within the dogmatic method. Just as mathematics and numerology cannot exist on the same plane, so the science of legal concepts as envisaged by the German Pandectists could not easily exist on the same plane as hermeneutics.191 One way of combating this conflict was, therefore, to distinguish an ‘inferior’ system of rules and a ‘superior’ system of concepts; the law was not, then, a mass of rules but a system of concepts192 – a system, as Felix Cohen put it stridently (some might say unfairly), of transcendental nonsense.

Jouanjan (2005), at 229. Ibid, at 223–4.

191 192

6. Contemporary methods and methodological issues In this second chapter on post-Roman methodology the emphasis will be on the reaction, mainly in the twentieth century, against the highly abstract conceptual vision of law, with its accompanying dogmatic method. Broadly speaking one can talk of a shift from conceptual structuralism towards a functionalist approach, this latter expression being defined quite widely to include a number of different schools of thought. The functional approach has by no means been displaced as a scheme of intelligibility in legal reasoning, but it provoked reactions from some jurists who felt, and feel, that judges should preoccupy themselves only with rights. In the domain of comparative law the functional method equally provoked a reaction, leading to a cultural turn. Culturalism has its methodological implications – often emphasising a hermeneutical scheme of intelligibility – but it is also a paradigm orientation that has important implications with respect to traditional legal theories. In fact, culturalism has two facets: the law-in-culture facet in which law is seen as part and parcel of national culture (ex cultura ius oritur) and the culture-in-law facet (cultura in iure) in which, for example, an Indigenous culture with its own norms exists within a national system, often presenting challenges to this national system. This second facet raises both method and theory issues. In addition, the last century saw the rise in the United States of the law and economics school, a school which emphasised a causal relationship between the two disciplines.

1.

FUNCTIONALIST TURN (UTILITAS)

One method that has proved particularly valuable with respect to statutory interpretation is for courts to look to the purpose of a particular statute in order to arrive at a meaning. The original source of this interpretative approach, within the common law, is the so-called mischief rule, which was formulated in the days when legislation was an exceptional source of law-making and was often passed to cure some defect or mischief in the common law.1 The rule can be seen as a facet of the more general idea of giving expression to the mens 1 See Law Commission Report, The Interpretation of Statutes (Law Com No 21, 1969), at para 33.

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legislatoris, but equally it might be regarded as an example of a functional scheme of intelligibility. The meaning of a word or phrase is to be judged not by reference to the word or words, but to the purpose or function of the text in question.2 A functional analysis, then, is a grille de lecture, or scheme of intelligibility, identified by sociologists as an analysis which privileges a mode of explanation of social phenomena by reference to their consequences.3 This said, functionalism as a scheme or method is far from easy to define – and not just because there are various different currents and levels of functionalism, but also because it is a term that, on closer examination, proves somewhat ambiguous.4 And this is as true for jurists and comparatists as it is for social scientists in general.5 It might therefore, on occasion, be more useful to talk in terms of a consequentialist scheme rather than a functional one.6 Nevertheless the scheme is valuable for lawyers, in that it was a term employed by one of the leading jurists of the American Realist movement, who spearheaded an attack on the mos mathematicus legal conceptualism that had been so influential in the United States during the nineteenth century.7 Felix Cohen described this conceptual world of axioms and theorems, as we have seen (Chapter 5, section 10), as ‘transcendental nonsense’ and asked: ‘How are we going to get out of this tangle? How are we going to substitute a realistic, rational, scientific account of legal happenings for the classical theological jurisprudence of concepts?’8 His initial response was to highlight some of the difficulties associated with functionalism: Attempts to answer this question have made persistent use of the phrase ‘functional approach’. Unfortunately, this phrase has often been used with as little meaning as any of the magical legal concepts against which it is directed. Many who use the term ‘functional’ intend no more than the vague connotation which the word ‘practical’ conveys to the ‘practical’ man.9

And he continued: ‘Again, the term “functional approach” is sometimes used to designate a modern form of animism, according to which every social insti-

See eg Lord Toulson in Campbell v Gordon [2016] UKSC 38, at paras 27–30. Chazel (2005); Guillo (2006). 4 Ibid. 5 Michaels (2019). 6 Guillo (2006), at 468. 7 Cohen (1935). 8 Ibid, at 821. 9 Ibid, at 821–2. 2 3

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tution or biological organ has a “purpose” in life, and is to be judged good or bad as it achieves or fails to achieve this “purpose”.’10 Cohen then set out his own approach: I shall not attempt to be faithful to these vague usages in using the term ‘functional’. I shall use the term rather to designate certain principles or tendencies which appear most clearly in modern physical and mathematical science and in modern philosophy. For it is well to note that the problem of eliminating supernatural terms and meaningless questions and redefining concepts and problems in terms of verifiable realities is not a problem peculiar to law. It is a problem which has been faced in the last two or three centuries, and more especially in the last four or five decades, by philosophy, mathematics, and physics, as well as by psychology, economics, anthropology, and doubtless other sciences as well. Functionalism, operationalism, pragmatism, logical positivism, all these and many other terms have been used in diverse fields, with differing overtones of meaning and emphasis, to designate a certain common approach to this general task of redefining traditional concepts and traditional problems.11

Functionalism for Cohen seemed, then, a matter of eliminating conceptualism and replacing it with ‘verifiable realities’. In fact the seeds of this reaction are to be found not in the common law world as such – although it is argued that the common law judges have long been sensitive towards consequentialist or functionalist ideas12 – but in Germany itself. Indeed, Cohen himself makes reference, at the beginning of his article, to the jurist who famously proposed an alternative view of law to the one that was currently dominating Germany and beyond. Rudolf von Jhering (1818–92), as Jones noted, was originally very much part of the conceptual school, but he came to see that the value of legal concepts lay in the practical ends that they serve.13 According to Jhering, ‘there is no legal rule which does not owe its origin to a purpose, ie to a practical motive’.14 And the key concept for understanding law was, in this jurist’s thesis, the notion of a social interest. As he explained: Nature herself has shown man the way he must follow in order to gain another for his purposes: it is that of connecting one's own purpose with the other man's interest. Upon this principle rests all our human life: the State, society, commerce, and intercourse. The co-operation of a number of people for the same purpose is brought about only by the converging of all the interests upon the same point. No one perhaps has in view the purpose as such, but every one has his own interest in view, a subjective purpose which is quite different from the general objective one,

Ibid, at 822. Ibid. 12 See eg Lobban (1991), at 86, 93–6. 13 Jones (1940), at 68. 14 Von Jhering (1913), at liv. 10 11

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but the coincidence of their interests with the general purpose brings it about that every one in taking pains for himself at the same time becomes active for the general purpose.15

Rights, then, are not deduced from some metaphysical conceptual structure of axioms; they are rooted in the empirical notion of a social interest (Interessenjurisprudenz). Law is about the balancing of social interests. Yet how does this balancing translate into a feasible method? Cohen talked about the necessity of eradicating meaningless concepts16 and while the notion of an interest has, certainly, a strong empirical flavour, it nevertheless remains a concept. Is it a meaningless one? It does have valuable advantages; for example, it can link legal thought and reasoning with other disciplines such as economics and politics, both of which employ the notion of an interest.17 It is also a useful notion for giving expression to a range of different kinds of harm, allowing some kinds to be protected by the law while others are unprotected. In the tort of negligence, for example, certain kinds of economic harm – pure economic loss – are normally excluded from compensation claims. As the late Tony Weir (1936–2011) put it: To cause harm means to have an adverse effect on something good. There are several good things in life, such as liberty, bodily integrity, land, possessions, reputation, wealth, privacy, dignity, perhaps even life itself. Lawyers call these goods ‘interests’. These interests are all good, but they are not all equally good. This is evident when they come into conflict (one may jettison cargo to save passengers, but not vice versa, and one may detain a thing, but not a person, as security for a debt). Because these interests are not equally good, the protection afforded to them by the law is not equal; the law protects the better interests better: murder and rape are, after all, more serious crimes than theft. Accordingly, the better the interest invaded, the more readily does the law give compensation for the ensuing harm.18

As Weir indicated, an interest can equally be a ‘good’ (as opposed to a type of harm) and thus act as a means of protecting defined classes of person such as children; in English family law the interests of children are normally paramount. Moreover, it is a particularly valuable concept in the law of actions, since it can either limit the number of persons who have access to particular remedies (pas d’intérêt, pas d’action)19 or act as a means of protecting various collective groups whose cohesion is not such as to amount to legal personality

17 18 19 15 16

Ibid, at 28. Cohen (1935), at 822–3. Stirn (2003), at 837; Leroux & Marciano (1998), at 15–18. Weir (2000), at 6. See eg the French Code de procédure civile art 31.

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(consumers, future generations and the like).20 That it is a valuable reasoning concept often employed by judges in English law is beyond question.21 Indeed, it is a notion that is regularly used by the legislator.22 Accordingly, if one returns to Felix Cohen and the functional approach, this author argued that, in place of the conceptual approach to law, future researchers will look to social policy. This, he said, ‘will be comprehended not as an emergency factor in legal argument but rather as the gravitational field that gives weight to any rule or precedent, whether it be in constitutional law, in the law of trade-marks, or in the most technical details of legal procedure’.23 The balance of interests would, therefore, appear to be a question of social policy, for the notion of an interest is one that, as Jhering himself asserted, represents the social purpose of law. Now if one returns, equally, to Lord Goff, his assertion mentioned earlier (Chapter 5, section 8) did not subsequently prevent him from criticising academic writing with regard to a Court of Appeal decision on the ground that there was ‘no analysis of the problem’ and that ‘a crumb of analysis is worth a loaf of opinion’.24 In other words, la méthode dogmatique had not been fully abandoned. Yet Lord Goff was right to say that by the second half of the twentieth century there had been change. Accordingly, in the same case in which Lord Goff made his criticism of academic analysis, another judge made a rather different observation. Lord Cooke (dissenting in part) said: In logic more than one answer can be given. Logically it is possible to say that the right to sue for interference with the amenities of a home should be confined to those with proprietary interests and licensees with exclusive possession. No less logically the right can be accorded to all who live in the home. Which test should be adopted, that is to say which should be the governing principle, is a question of the policy of the law. It is a question not capable of being answered by analysis alone. All that analysis can do is expose the alternatives.25

Jolowicz (1983). See Samuel (2018), at 285–328; and for the civil law see Ost (1990). 22 See in particular the Mental Capacity Act 2005 s 4. And see Samuel (2018), at 294–8. 23 Cohen (1935), at 834. 24 Hunter v Canary Wharf Ltd [1997] AC 655, at 694. 25 Ibid, at 719. 20 21

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A balancing of interests can also be found in a case where an injunction was sought to prevent the playing of cricket because of the danger presented to nearby residents by wayward cricket balls. Lord Denning MR reasoned: This case is new. It should be approached on principles applicable to modern conditions. There is a contest here between the interest of the public at large and the interest of a private individual. The public interest lies in protecting the environment by preserving our playing fields in the face of mounting development […] The private interest lies in securing the privacy of his home and garden without intrusion by anyone. In deciding between these two conflicting interests, it must be remembered that it is not a question of damages […] No, it is a question of an injunction […] As between their conflicting interests, I am of opinion that the public interest should prevail over the private interest […] In my opinion the right exercise of discretion is to refuse an injunction.26

In other cases, Lord Denning was happy to appeal more directly to social policy. In several decisions he has justified a rule or a solution by reference not to some appeal to an a priori rule-model but to policy.27 He was, and is, not alone; judges have used policy reasoning to justify their decisions, particularly in areas such as the law of tort.28

2.

ACTIONALIST TURN (HOMO SINGULARIS)

However, there are dangers: what is a valid social policy for one judge might not be for another.29 Cohen himself seemed undeterred by this danger because, even if in the opinion of a critic a judge arrives at a socially ‘wrong’ decision, at least the reasoning itself is not hidden behind some smokescreen of conceptual nonsense. ‘Washed in cynical acid’, he wrote, ‘every legal problem can thus be interpreted as a question concerning the positive behavior of judges’.30 Nevertheless, Cohen was not prepared to see court decisions simply as a question of judicial psychology or personality, since such a decision is always a social event.31 Judicial background and behaviour, while of great importance, must nevertheless be placed within the context of much wider social issues. Jerome Frank (1889–1957), however, seemed less restrained; the personality of the judge is the pivotal factor in administering the law and thus the law will vary with the personality of the judge.32 And the idea that personality and the 28 29 30 31 32 26 27

Miller v Jackson [1977] QB 966, 981–2. For examples see Samuel (2016), at 60 and Samuel (2018), at 109. A good example is Hill v Chief Constable of West Yorkshire [1989] AC 53. For an example see Samuel (2016), at 61–2. Cohen (1935), at 840. Ibid, at 843. Frank (1949), at 111.

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discretionary nature of judicial decision-making is somehow ‘bound by law’ is nothing but ‘mythical thinking’.33 The implication of this realist thinking is that legal research should be focusing on the judges themselves as individuals; it is the social background, education, psychology and so on of each individual decision-maker that holds the keys not just to legal knowledge but to legal prediction as well.34 Yet it was not only the Realists who put the judge at the centre of legal theory. Ronald Dworkin (1931–2013), often considered anything but a realist (although much depends on how one defines a realist), equally saw that decision-making by judges was central to his view of what law is. Dworkin's judicial method was this. The judge ‘must construct a scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and, so far as these are to be justified on principle, constitutional and statutory provisions as well’.35 He must ‘develop a particular approach to legal interpretation by forming and refining a political theory sensitive to those issues on which interpretation in particular cases will depend’.36 And this ‘will include both structural features, elaborating the general requirement that an interpretation must fit doctrinal history, and substantive claims about social goals and principles of justice’.37 In short, judges ‘who accept the interpretative ideal of integrity [must] decide hard cases by trying to find, in some coherent set of principles about people's rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community’.38 The personal obligation resting on the judges is that they must ‘try to make that complex structure and record the best these can be’.39 Such a structure was not a scientific one in the mos geometricus sense; it was a hermeneutical one and analogous to the writing of a chain novel, that is, a work where each chapter is written by a different author and where each author interprets the chapters that precede, the judge being like one of the authors.40 Dworkin was quite clear about this. ‘Law’, he said, is ‘an interpretive concept’. What judges must do is to ‘decide what the law is by interpreting the practice of other judges deciding what the law is’.41 But this is not ‘an algorithm for the courtroom’, for no ‘electronic magician could design from my arguments a computer program

Ibid, at 136–7. Jones (1940), at 191–4. 35 Dworkin (1977), at 116–17. 36 Dworkin (1985), at 161–2. 37 Ibid, at 162. 38 Dworkin (1986), at 255. 39 Ibid. 40 Ibid, at 228–38. 41 Ibid, at 410. 33 34

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that would supply a verdict everyone would accept at once [where] the facts of the case and the text of all past statutes and judicial decisions were put at the computer’s disposal’.42 But then, it was not a human program either, because the only judge able to fulfil his ideal was, according to Dworkin, the superhuman judge Hercules.43 Despite this focus on the obligation of the individual judge – a scheme of intelligibility in which law is envisaged as a contextual framework for individual actors and their intentions44 – there are in Dworkin’s thesis several other schemes of intelligibility in play. The most evident are of course the hermeneutical turn (law as an interpretative concept) and the appeal to a structural ‘fit’, but there is an important dialectical analysis in play as well. ‘Legal practice’, said Dworkin, ‘unlike many other social phenomena, is argumentative’.45 This argumentation process is not restricted to a judge advancing an argument aimed at other players, so to speak; it is equally an argumentation process that takes place within the judge. ‘If a judge who accepts law as integrity finds that two interpretations each fit the area of his immediate concern well enough to satisfy his interpretive constraints’, wrote Dworkin, ‘he will expand the range of his study in a series of concentric circles to include other areas of law and then determine which of the two better fits the expanded range’.46 The judge (or, in the case of Dworkin, the superhuman judge Hercules) must, then, continually put questions to himself. And so law ‘is not exhausted by any catalogue of rules or principles, each with its own dominium over some discrete theatre of behaviour’.47 It is an empire defined by a dialectical self-reflective attitude of individual actors, even if these actors are more fictitious (Hercules) than real. Of course, if one wishes to understand real judges – real actors on the legal stage – some might say that such people are to be found not in the writings of Dworkin but in the work of writers such as Felix Cohen and Jerome Frank.

3.

CAUSAL TURN

Ronald Dworkin’s Hercules was not a functionalist in the sense that his judgments would bring into play policy or instrumentalist considerations. His role was to concern himself with arguments of principle and not arguments

44 45 46 47 42 43

Ibid, at 412. Ibid, at 239. Berthelot (1990), at 76–81. Dworkin (1986), at 13 (emphasis in original). Ibid, at 402. Ibid, at 413.

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of policy.48 ‘Arguments of policy’, said Dworkin, ‘justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole’, while arguments ‘of principle justify a political decision by showing that the decision respects or secures some individual or group right’.49 Dworkin thus criticised judges such as Lord Denning in the case of Spartan Steel, who justified his decision by reference to policy considerations.50 Hercules would have justified his decision in such a case only by showing that the claimant had a right to damages.51 This rights thesis, insisted Dworkin, provided a more satisfactory explanation of how judges use precedent in hard cases than any decision based upon policy considerations.52 However, it has to be asked whether the separation is actually viable. Dworkin’s claim was founded on the distinction that principles ‘are propositions that describe rights’ whereas ‘policies are propositions that describe goals’.53 But, as Professor Stephen Waddams has written, a ‘historical perspective suggests that the dichotomy […] is over-simplified’ and that principle and policy ‘have not been contradictory, in the sense that one must be chosen to the exclusion of the other’.54 They have been, says Professor Waddams, ‘mutually interdependent’.55 Of course, the two viewpoints are not operating at the same level: Dworkin was offering an idealist and philosophical thesis while Waddams is indicating an historical truism. As the latter author says, a ‘historical study cannot show which linguistic usage is superior, or which approach would be preferable in an ideal legal system’.56 However, ‘it can show that, over a considerable period of time in English contract law and in the law of related jurisdictions, the formulation of principles, in the sense of generalized justifying propositions, has very commonly been influenced by considerations of convenience, common sense, a general sense of what is just in the particular case and a judgment of what is desirable for the future’.57 This said, one problem with talking about ‘policy’ is that it is not easy to fathom what exactly is meant by the term.58 Broadly, one might say that it is a ‘socially desirable state of affairs’, and so reasoning by reference to a policy Dworkin (1977), at 82. Ibid. 50 Spartan Steel & Alloys Ltd v Martin & Co [1973] 1 QB 27. See generally Samuel (2016), at 60–4. 51 Dworkin (1977), at 83. 52 Ibid, at 87. 53 Ibid, at 90. 54 Waddams (2011), at xv. 55 Ibid. 56 Ibid, at 20. 57 Ibid, at 20–1. 58 Ibid, at 14. 48 49

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consideration suggests something of a causal approach between reasoning and a state of affairs.59 Take for example this judicial statement: The second public policy consideration which I would emphasise in the present context is the desirability of safeguarding the police from legal proceedings which, meritorious or otherwise, would involve them in a great deal of time, trouble and expense more usefully devoted to their principal function of combating crime […] I would indeed regard actions pursuant to the liability principle as diverting police resources away from their primary function. Not perhaps in every case but sometimes certainly, the contesting of these actions would require lengthy consideration to be given to the deployment of resources and to the nature and extent of competing tasks and priorities.60

What the judge seems to be implying here is that there is a causal relationship between a precedent and a social situation. If the court were to impose a duty of care on the police on the facts of the case, the causal consequence would be that police resources would be diverted. A functional or consequentialist approach to legal analysis can thus embrace not just function but, equally, cause and effect. The difficulty with this policy approach is that the judges tend to make such policy or consequentialist assertions free from any actual empirical research. One can assert that holding A (police liable) will cause phenomenon B (diverted resources, trouble and expense), but is asserting it enough? In fact, a group of comparative lawyers have argued that on the continent the police have been held liable without any of the causal results envisaged by English judges actually taking place.61 This leaves the English judges vulnerable to those who take a Dworkinian position. It is not for the judges to play the role of social scientists and, if they do – if they deny a claimant the right to sue on policy grounds – they are in effect indulging in a ‘judicial confiscation’ of the claimant’s right.62 Social interests thus become notions that can cause real harm, according to formalist thinking, to private rights. Peter Birks (1941–2004), as we have seen (Chapter 1, section 6; Chapter 2, section 5), took a more nuanced position with regard to private rights and attempted to embed them in a causal theory that linked the right to an empirical 59 Interestingly Lord Simon in D v NSPCC [1978] AC 171, at 235 suggested that policy meant ‘consideration of social interests beyond the purely legal’, recalling of course Von Jhering’s social interest theory. 60 Lord Brown in Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225, at para 133. 61 See Markesinis (2001), at 293–8. 62 Robertson (2009), at 278–9. In fact, the judges seem now to be moving away from justifying police immunity on the ground of policy: see Michael v Chief Constable of South Wales Police [2015] UKSC 2.

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event. According to this jurist, ‘no right can be understood without understanding the events which bring it into being’.63 He identified such events as consent, wrongs and unjustified enrichment.64 It should, however, be evident at once that these events are hardly neutral notions and unless they can be identified by reference to some epistemological scheme independent of law, they will simply end up by being defined by reference to the law itself. When is a wrong a wrong? When the law of tort or delict deems the event to be wrong. Yet not only is the possibility of circular reasoning a problem; there is equally a difficulty with the notion of cause itself. On this point it might be useful to recall in more detail the criticism of Charles Webb, who investigated in some detail Birk’s thesis (see Chapter 1, section 6): If we are to devise a classificatory scheme which categorises legal rights by reference to the events from which they arise, the first thing we have to do is to identify the causative events of the various rights we want to classify. Now, the facts that need to be in place before a particular right arises will often be many, with each of these facts being necessary for the for the establishment of the right. Classification by causative event presupposes, therefore, that we can identify from this list of necessary factual elements one, or perhaps some combination, which can be regarded as the causative event, with the other facts to be considered in some sense ancillary, or as forming the background to, the ‘true’ causative event. It is far from clear, however, how we are meant to do this.65

Here, of course, is one of the fundamental problems with the causal scheme of intelligibility. Cause itself is an extremely complex issue which, within the discipline of law, is more likely to have a certain fictional element, in that any causal relationship cannot be tested by correspondence to the behaviour of some external object. To say, then, that the category of ‘contract’ is rooted causally in ‘consent’ or ‘agreement’ as causative events cannot be falsified as such. But it does not get one that far, since consent and agreement may well be a causative event for some other, non-contractual, right. Equally, the very category of contract may well contain rules that deem that there is a contract in a range of situations in which one of the parties, subjectively, did not actually consent. For example, a person may well find himself under a contractual liability to pay a debt because he failed to read the small print in the written contract. Can his liability actually be said to be caused (fact) by consent (fact), or is he liable because he is in the wrong (careless) for not reading the document?

Birks (1997), at 17. Ibid, at 17–23. 65 Webb (2009), at 225–6 (emphasis in the original). 63 64

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CAUSALITY AND ECONOMICS

This cause and effect relationship assumed a more central role with the rise of the law and economics school.66 Writing in 1940, Jones observed that one ‘result of the advance of economic studies during the past century has been a general recognition that the clue to the causes of the origin and transformation of legal rules and institutions is often to be found in the economic conditions of the time’.67 In fact, two fundamental questions have dominated this area. What has been the impact of economics and the economy on law? And what has been the impact of law on economics and the economy? Both of these questions imply a causal turn, although of course the methodological and theory context is far more complex since it brings into play method and theory – and indeed ideological – thinking from the discipline of economics. With regard to both of these questions there is, as one can imagine, a considerable amount of research literature, but, as Anne Fleming indicates, these theories of causal regularities have proved elusive and unstable.68 That a considerable number of regulating laws are designed to have a causal effect is surely beyond doubt. For example, legislation restricting the sale of tobacco or reducing the amount of sugar in fizzy drinks is aimed at having a beneficial causal effect upon public health, something that can ultimately be tested statistically. Moreover, as Walter Jones indicated in his chapter, most legal concepts, notions and rules have an economic aspect and the courts themselves are endlessly having to deal with economic value in one way or another.69 Yet once one moves to higher levels of observation the causal relations between law and economics begin to break down, or at least leave themselves open to all kinds of methodological and epistemological attacks. ‘If law shapes economic actors’ understanding of their own material interests’, writes Anne Fleming, ‘or if there are always multiple variables at play in addition to law and economy, then the project of separating law from economy and tracking the impact of each on the other seems doomed’.70 She goes on to suggest – and one gets the impression that Walter Jones might have agreed71 – that perhaps the two disciplines should not be separated and placed within a causal scheme of intelligibility that in itself assumes and emphasises a separation. Perhaps one is to be forced back to a more structural and functional set of schemes,

68 69 70 71 66 67

On which see Harris (2018). See also Jones (1940), at 235–69. Jones (1940), at 235 (emphasis added). Fleming (2018), at 214. Jones (1940), at 235–69. Fleming (2018), at 214. See eg Jones (1940), at 264.

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or indeed even one ‘locked together in a powerful dialectical exchange’.72 As Fleming says: Instead of starting with a theory of how law relates to economy and finding evidence for its support, scholars might instead begin with primary source materials and construct a narrative about how law operated within the context of particular people, institutions, ideas, and material things […] Law is neither entirely determined by, nor wholly autonomous from, its material context – and vice versa. Furthermore, scholars need not adopt a singular understanding of how law works […] Rather than attempt to find support for a generalized theory about how law and economy interact, historians might instead ask how the boundary between these two domains – law and economy – has been constructed over time, creating a sense of one’s separation from the other.73

There are of course other problems with the law and economics theory. For example, what is the function of law with regard to economics? What should it be ‘causing’? The response, as Gordley points out in his historical survey of legal projects, is ‘economic efficiency’.74 But what exactly is meant by this term? How is it to be analysed and judged? Economists have provided responses, but, again as Gordley shows, there are problems in linking such goals to actual cases.75 Explanations by economists do ‘not fit the law’.76 In other words, it is by no means easy to establish a sound causal relationship between actual law and economy and economy and actual law. That there might be causal links on occasion cannot be doubted: there are plenty of cases in which judges make decisions that, for example, avoid causing what they see as unnecessary economic inefficiency or wastage.77 And so one can by no means dismiss the causal turn in this area of legal theory. But there are other cases – and areas of the law – where any causal relationship between a legal outcome and an economically efficient result is at best very difficult to establish.78 Or, put another way, it is perhaps difficult to separate fictional causes from real ones.79

Fleming (2018), at 210. Ibid, at 215–16. 74 Gordley (2013), at 300. 75 Ibid, 300–9. 76 Ibid, at 304. 77 See eg Ruxley Electronics Ltd v Forsyth [1996] 1 AC 344; Co-operative Insurance Society Ltd v Argyll Stores Ltd [1998] AC 1. 78 Gordley (2013), at 300–9. 79 Leroux & Marciano (1998), at 95. 72 73

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CULTURALIST TURN (EX CULTURA IUS ORITUR)

One feature of economics as a knowledge discipline is its actionalist orientation. An actionalist approach puts the emphasis on the individual: its first axiom is that the logical atom of sociological analysis is the individual actor.80 In legal analysis one key individual actor for several theorists, as we have seen, is the judge. Economic analysis has equally made use of this scheme. The key approach is methodological individualism which finds its expression in the homo œconomicus, that is to say, in the rational individual who thinks only of advancing his own economic interest.81 In contrast to this ontological and epistemological vision is one that sees individuals within a holistic context of social culture; Raymond Boudon and Renaud Fillieule talk of a homo sociologicus, namely a person subjected to non-rational social forces.82 A culturalist approach is close to this idea in that it envisages law as a manifestation of the particular social culture in which it operates. However, there is another facet to the relationship between law and culture: besides the law-in-culture issue there is the question of culture-in-law. How is a legal system to respond to sub-cultures, with their own normative outlooks, within its domain? In terms of legal theory, the cultural turn does not necessarily suppress the notion of the individual legal subject in favour of an emphasis on a holistic cultural context, as Pascale Fournier explains. From a cultural perspective, ‘legal subjects shape and produce law as much as Parliament does, through their constructive creativity and normative interactions’.83 There is an intersection between law and culture which permits cultural mechanisms to act as ‘authoritative norms and socio-economic bargaining endowments, much in the way state law does’.84 Accordingly, ‘if law is culture, it is also the case that culture is law’.85 This idea of the active legal subject recalls to some extent an actionalist view of society where the actor ‘is never an “atom” who makes his or her decisions in a kind of social vide’.86 His or her actions are limited by, and partly defined by, the social context. René Provost develops this actionalist view in referring to ‘microlaw’, where ‘legal normativity [is] created informally in the course of ordinary encounters among individuals’.87 He cites as 82 83 84 85 86 87 80 81

Ibid, at 116. Ibid, at 83. Boudon & Fillieule (2018), at 121–2. Fournier (2017), at 61. Ibid, at 62. Ibid (emphasis in original). Boudon & Fillieule (2018), at 75. Provost (2017b), at 323.

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examples a whole range of social interactions where unacceptable behaviour attracts informal sanctions. ‘Microlegal systems’, he says, ‘can be described as semi-autonomous, in that they operate in a universe regulated by formal legal norms in which they are grounded and with which they intersect constantly’.88 Positivists would of course not regard these social encounters and social norms as law, as Provost recognises.89 But that is the whole point of the cultural turn: it is a challenge to the traditional legal positivist view of law and society. René Provost goes on to indicate that the cultural context is a wider and more subtle notion than the social since it is not just a question of perhaps limiting strategies and options; culture shapes the whole vision of the subject. Accordingly, as Provost says, ‘the operation of law implies the production of a certain vision of reality’ and the construction of this reality ‘is grounded in the culture of religion, art, politics, or economics’.90 It is a matter of the normative construction of facts.91 Provost adds: Even more, the social construction of the place of law in our society implies that the legal construction of reality is not merely one amongst many possible perspectives on any reality, not just one of many manners of imagining the real, but rather the one that will determine the resolution of any possible dispute amongst these perspectives.92

Provost’s paper is provoking because he considers in detail whether aspects of cannibalism can be ever be ‘law’. Can there ever be a set of norms governing cannibalism where it might in certain circumstances be a cultural practice? However he also uses cannibalism as a metaphor with regard to law’s construction of reality: law consumes all and what it ‘cannot digest and transform is simply rejected as irrelevant’.93 He is, like Fournier, making the point that law is culture and culture is law. Moreover, ‘the metaphor of cannibalism emerges as an insightful way for thinking about law’s relation with other non-legal normative systems’.94 This assertion that law-in-culture and culture-in-law constructs its own factual realities takes one beyond the cultural turn and into the wider epistemological question about the comprehension of facts, something of course that is an epistemological issue in many disciplines. Can facts be directly perceived or can they be understood only through the models that we build to represent 90 91 92 93 94 88 89

Ibid, at 324. Ibid, at 323. Ibid, at 335. Ibid, at 334. Ibid, at 336. Ibid, at 332. Ibid, at 339.

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them? Or, put another way, are there such things as brute or raw facts? This is not an issue that will be discussed here (but cf Chapter 1, section 4),95 but it does provoke, evidently, the question of how culture might contribute to this question. Take for example ‘person’ and ‘thing’: are these neutral facts that can be directly accessed by the senses? One might say that they can, in that biologists and zoologists can no doubt produce convincing evidence that distinguishes, first, living things from non-living objects and, second, humans from other living things. Yet when the law makes such a sharp distinction between persona and res, which it has done since Gaius’ Institutes (Chapter 3, section 3), a cultural aspect soon emerges.96 For many centuries, Europe (and elsewhere) was content to treat many people as things to be owned (slave culture), while today many forms of property are seen as things to be ‘consumed’, suggesting a merging of persona and res by ingestion (consumer culture).97 The ‘thingification’ of entitlements through notions such as ‘rights’ and ‘interests’ – particularly with regard to res incorporales (cf Chapter 3, section 4) – can equally be seen as a cultural construct in which many things ‘exist’ simply through a culture of ‘intellectual property’. Other cultures might, for example, treat certain things – an animal or a religious building – as having human characteristics. One interesting question, of course, is the extent to which these cultural constructs inherent in legal thought can be transplanted into other, very different, cultures.

6.

CULTURALISM AND METHOD

Yet how are jurists to think about – to theorise – law’s relation with other non-legal normative systems? To say simply that law is culture and culture is law is too broad, if only because defining culture and law is, to say the least, difficult.98 In addition, there is a methodological issue: how is legal method and legal reasoning to respond to the cultural turn and to cultural issues raised in legal disputes? Now, as we have just seen, the relationship between law and culture is complex and difficult, but it raises three fundamental questions. What is meant by ‘law’? What is meant by ‘culture’? And what is meant by ‘relation’ in this context of law and culture? One only has to pose these questions to appreciate the immense challenges in trying to formulate responses, but what adds to the difficulty is that they cannot be answered independently.

But on which see: Samuel (2016a). See generally Esposito (2018). 97 ‘At the end of the day, in transforming things into merchandise, men transform themselves into things’: Esposito (2018), at 57. 98 See eg Nelken (2007). 95 96

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In order to reflect on the relation(s) between law and culture one has to reflect at the same time on what one means by law and by culture. The relationship can operate in several different contexts. There is what might be called the law in action context, in which the question to be considered is how specific cultural norms and practices are to be accommodated – if they are to be accommodated – within the actual practice of law, that is to say, for example, in specific disputes that find themselves before a national court. Then there is what might be called the law in books context. How are cultural norms and practices to be accommodated in terms of constitutional and legal theory? How is ‘culture’ to be embraced by the notion of ‘law’? A third relationship might be said to operate at the level of epistemology and method; one might call this the law and knowledge context. How does cultural knowledge impact on legal knowledge (and vice versa) and what are the methodological implications of such impacts? If one starts with the law in action question, how do Western-style legal processes and procedures handle issues of customary traditions, norms and practices? Much of course depends both upon these customs and practices and upon the model of the Western system in play. As regards the latter, Thomas Burelli and Régis Lafargue have shown how the legal model in operation can result in negation, marginalisation, subordination or coordination when the state legal order comes into contact with another cultural order operating within its midst.99 And while this analysis indicates the difficulty of attempting to separate law in action from either law in books (legal theory) or law as knowledge (epistemology), it does bring one thing starkly into focus; that is, the extent to which theory and knowledge inform not just law in action issues but every single aspect of law as a discipline, of legal learning and of legal practice. Anthony Connolly talks in terms of law’s ‘identity’ and thus one perpetual fear that pervades the law in action interface between law and culture is that of law losing its identity.100 What is valuable about this idea of ‘identity’ – besides emphasising the importance of a diachronic understanding of law – is that it provides a vehicle for moving between law in action, law in books and law as knowledge. However, to refocus on the law in action aspect of the interface between law and culture, it is not just identity which matters; there are also the customs themselves. Some customary practices and (or) norms may find themselves incompatible with the practices and norms of the state legal system.101

Burelli & Lafargue (2017), at 193–4. Connolly (2017), at 24–6. 101 See eg Richland (2017). 99

100

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However, some may go further and challenge head-on the legal, social and moral norms of the state system and the culture which nurtures this system. A very powerful example is female gender mutilation (FGC), which Lucia Bellucci has examined in relation to the French courts. Such a practice is not just illegal in France and in other Western legal system countries but also abhorrent to many citizens living in these states. How is the legal process to react to ‘an ancient practice that is widespread in many places, particularly Africa’?102 One of the problems underpinning this conflict is ideological, in that ‘FGC collides with the individual fundamental rights recognised by modern states’, and it is this conflict, as Bellucci shows, which ‘has played out multiple times before French courts’, with the result that they ‘have developed the richest jurisprudence on excision’.103 Yet the analysis also ‘shows that the pole of the conflict representing the state legal system was not homogenous in France’.104 The judges did not speak with one voice and some thought that this conflict was an inappropriate one to be played out in the criminal courts. One added complication that emerges from Bellucci’s study is that FGC as a ‘binding customary norm’ cannot be explained just in terms of male domination, in that FGC ‘is perpetuated and practised by women’.105 But, as she also points out, men are not without influence in that ‘men refuse, in general, to be the husbands of women who are not excised’.106 Be that as it may, the conflict, as Bellucci shows, is not one that is confined as such to the field of criminal law; it also raises a fundamental family law question. If a child is in danger of being subject to FGC, should the child be removed from the family? From a rights and interests point of view the answer would seem to be positive: the interests of the child are generally considered to be superior to the interests of the parents. However, is it in the interests of the child to be ‘definitively removed from her natural environment until the age of majority with the risks of abandonment and déculturation that this represents’?107 Here Bellucci is quoting the judge from the Tribunal pour enfants, Antoine Garapon, who is equally a renowned jurist and comparative lawyer in France. This thoughtful reflection shows that once one moves away from the notion of individual ‘rights’ and puts the emphasis on ‘interests’, the conflict between law and culture becomes internalised within the ‘identity’ of law itself.

Bellucci (2017), at 85. Ibid, at 121. 104 Ibid, at 122. 105 Ibid, at 123. 106 Ibid. 107 Ibid, at 110. 102 103

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Yet this internalisation around the notion of an interest raises another issue. The notion of an interest is not essentially a normative concept in itself but, as we have seen (section 1 above), seemingly a factual one which thus raises the question of the legal status of a customary norm or practice. René Provost talks of ‘culture [being] objectified through empirical means in the courts’, that is to say, through being ‘framed by the distinction between fact and law that characterizes Western law’.108 This, says Provost, is a ‘process whereby a culture becomes reduced to facts [and thus] is one in which a particular cultural narrative is created’.109 From a law in action viewpoint, such a process can leave those parties to a dispute whose normative and practice environment is different from the Western legal culture frustrated, to say the least. In effect, by treating the customary legal order as simply a question of fact, a court is imposing a dominant legal order which exercises control over the interface zone between the Western and customary legal orders.110 The legal process becomes, in short, one of legal imperialism or legal colonialism. Treating Indigenous law as fact ‘is significantly counter-recognitional’ and ‘so constitutes a denial of the status of Indigenous peoples and their cultures as politically (if not ethically) equal to the dominant non-indigenous people and culture in these societies’.111

7.

CULTURALISM AND THEORY

This is not to suggest that such imperialism or colonialism is a conscious suppression of the ‘other’ (although it might be on occasion, and no doubt was in the colonial past). It is more a matter of post-colonial thinking coming into conflict with traditional legal thinking and the identity of law. This brings the debate to the second level of relation between law and culture, namely law in books. At this level the relation between law and culture is primarily one of theory: how is such a relationship to be theorised? Several issues emerge from the debate. The first is, as has been mentioned, the question of law’s identity. Second, within this identity there is the overriding influence of legal positivism, itself contextualised within a particular legal identity. This identity, originally articulated by Roderick Macdonald, is well summarised by René Provost. The concept of law rests upon four precepts: monism (the claim that law is a unified, coherent regime); centralism (associating the power to validly create legal standards with state sovereignty); positivism Provost (2017a), at 6. Ibid. 110 See Burelli & Lafargue (2017), at 208. 111 Connolly (2017), at 45. 108 109

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(viewing law as ontologically distinguished from fact, thus allowing the systematic delineation of the frontier of legality to reflect pre-existing legal standards); and prescriptivism (offering legal norms as external constraints descending upon legal agents to try to modify patterns of behaviour).112

Leaving aside the extent of any Roman and (or) historical foundation to this description (cf Chapter 5, section 7), if this represents an accurate picture of law’s identity and theory, then one can immediately appreciate the problematic nature of law’s relations with culture. How is theory to respond to the empirical existence of cultural norms and practices? The response is legal pluralism. Several questions emerge here. What is legal pluralism and can it be reconciled with legal positivism? If not, can the theory be reconciled with a wider notion of law’s identity? If not, where does theory go from here? Perhaps it is worth reminding oneself that legal pluralism is not necessarily a new idea. In the past, legal traditions other than Roman law were very much accepted; there was canon law and local customary laws, although these other systems were reconciled with the ‘learned law’ through the dichotomy between the ius commune and the iura propria.113 Thus, differences between say canon law and Roman law – one famous example being the enforceability of ‘bare pacts’ (nuda pacta) – were accepted as truisms without seemingly transgressing any existing legal theory.114 Even in contemporary English law it is recognised that there may be different rules in common law and equity, one example being the parole evidence rule in contract.115 Co-existing normative systems have, in other words, not necessarily been anathema in the history of law’s identity. Whatever the historical position, as Thomas Burelli and Régis Lafargue observe, according to some authors legal pluralism does not constitute a uniform theory, since there are as many theories as there are authors working on it.116 However, for Jennifer Hendry it has now become the most convincing and workable legal theory, even if ‘it appears to lack much in the way of definitional contours’.117 According to Hendry, legal pluralism envisages law as ‘a plurality of legal or normative orders’ which give ‘rise to a situation where there are alternative paths or processes available within a pre-defined legal space, but only one can be selected’.118 It views law as fragmented rather than

Provost (2017b), at 323. See generally Maruotti (2011). 114 Ibid, at 80. 115 See eg Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101. 116 Burelli & Lafargue (2017), at 193, footnote 7. 117 Hendry (2017), at 187. 118 Ibid. 112 113

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monistic. And this ‘fragmentation of law within and across jurisdictions and legal spaces is facilitated by the existence of boundaries that operate along normative, cultural, functional, geographical and alternatively spatial lines’.119 This plurality of legal circumstances ‘generate[s] contradictory views of both borders and spaces, but […] also serve[s] to hold them in tension, keeping them in a state of perpetual juxtaposition, or hyphenation’.120 Can this fragmented view of law be reconciled with the traditional (Roman-inspired?) theories of law? Anthony Connolly argues that there is nothing inherent in Hart’s concept of law that necessarily stands in the way of a cross-cultural understanding of Indigenous laws. This author’s argument is based on the assertions, first, that Hart’s concept of a legal system is one that consists of a system of rules and, second, that cross-cultural understanding will not succeed if there are sufficient unfavourable or non-conducive factors that obtain over the course of a legal hearing. Connolly calls these non-conducive factors ‘counter-interpretive legal factors’.121 Now, he says, on ‘the Hartian picture, a given set of legal rules may, as a contingent matter of fact, operate so as to impede cross-cultural understanding on the part of legal agents, but this is not necessitated by the very nature of rules or legal rules’.122 For it ‘is not legality as a general matter which stands in the way of cultural understanding here, but the contingent counter-interpretive orientation of actual systems of legal rules in the world, as envisaged and constituted by actual agents’.123 Thus, although law does not necessarily facilitate cross-cultural communication, ‘it might contingently do so without losing its identity as law, as a distinctive system of rules’.124 It is important to note here that Connolly is emphasising a Hartian concept of law and not arguing at the level of legal positivism in general. Indeed, he asserts that on an Austinian view of law, founded of course on sovereignty theory (law as commands of a sovereign), Indigenous law is not and cannot conceptually be law.125 However, he thinks that this Hartian notion of law is the dominant judicial ideology in many common law systems and if this is the case, then there are no counter-interpretive legal factors in the theory itself that would prevent cross-cultural understanding. Law could,

Ibid, at 188. Ibid. 121 Connolly (2017), at 35. 122 Ibid, at 40–1 (emphasis in the original). On HLA Hart (1907–92) see Hart (1961). 123 Ibid, at 41 (emphasis in the original). 124 Ibid (emphasis in the original). 125 Ibid, at 45–6. On John Austin (1790–1859) see Austin (1832). For a discussion of Austin see Jones (1940), at 95–7; Jolowicz (1963), at 15–27, 106–18. 119 120

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therefore, maintain its identity while at the same time facilitating cross-cultural understanding.

8.

CULTURALISM AND EPISTEMOLOGY

There is a fundamental epistemological question in play in Connolly’s analysis. Is legal knowledge simply knowledge of rules (regulae iuris)? Or, put another way, is law as a body of knowledge nothing other than knowledge of a system of rules? Almost immediately one runs into a number of difficulties (as indeed we saw with Roman law). First, to envisage legal knowledge uniquely as a system of rules is to envisage a body of knowledge that is in itself inert with respect to its relation with facts and with law in action. Rules of course may describe certain facts, but words need interpretation and application to factual situations, and this requires human intervention. Does law’s identity as a body of knowledge embrace the law-maker and law-applier as well as the system of rules? Hart is not silent on the role of the judge, but his theory seems to leave the judge outside of the epistemological framework – and this of course was later to be exploited by Ronald Dworkin, who incorporated this figure within his interpretative theory (see section 2 above). Not that Dworkin offers much for legal pluralism. But Kirsten Anker does identify, if not the dichotomy between law and law-maker, the tension ‘between law as a set of inert facts and law as the exercise of jurisdiction, the authority to speak the law’. As she goes on to say, ‘it is the contrast between law as product and law as process’.126 Might one reconcile traditional Western legal knowledge with a pluralistic epistemology by incorporating within the legal processes judges drawn from Indigenous people? ‘If every judgment is implicitly an assertion that we can persuade others to agree with us’, concludes Anker, ‘a legally pluralistic judgment may be one in which the imagined – and rhetorically constituted – community of interlocutors includes those who belong to “other” legal cultures’.127 It is not a question of applying law as some constituted body of objective knowledge (‘positive, objectified rules’, as Anker puts it), but one of speaking the law. Such an approach could be seen as a movement away from knowledge formalism towards knowledge realism, but ‘speaking the law’ does not necessarily imply realism as Dworkin’s work indicates. It could be a matter of interpretative ‘attitude’. A second knowledge difficulty, which follows on from the first, concerns the epistemological importance of what Maks Del Mar has termed the ‘artefacts’

Anker (2017), at 147. Ibid, at 150–1.

126 127

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of law.128 Such artefacts – which are fabricated notions to be used for particular purposes but, once formulated, can reflect back on themselves – include concepts, categories, institutions and notions of law (Roman foundations?). These artefacts can of course be described or constructed through rules, but as artefacts they seem often to take on an independent epistemological life of their own. Books have been written, for example, on the concepts of a ‘right’, on the philosophy of ‘contract’ and on the notion of an ‘interest’.129 These artefacts are surely as much of Western law’s identity – indeed, its Roman foundations identity – as any system of norms or rules, and so a question arises as to the relations between these artefacts and Indigenous cultures. However, before this question of culture can be addressed, mention must be made of a third knowledge difficulty that is associated with both rules and artefacts. This is the notion of a system.130 In civil law thinking rules and artefacts do not exist as completely independent elements; they are bound together in a structural relationship that has its roots in a system associated with an introductory textbook, the Institutes, written by the second-century Roman jurist Gaius (see Chapter 3, section 3). Law consists of persons (personae), things (res) and actions (actiones),131 a scheme, as we have seen, which found its way into modern Europe via what might be seen as a second edition of Gaius, namely the Institutes of Justinian (see Chapter 3, section 3). What is epistemologically interesting about this institutional system is the extent to which, along with the concepts and categories that make up the elements of the system, it forms the basis of law’s identity. A further question, of course, is the strength of the relationship between such an institutional system and culture. Alan Watson (1933–2018) addressed both of these issues, in a way that was (and remains), to say the least, controversial. Watson argued that Roman law was transplanted into modern Europe and beyond not at the level of particular rules as such (although many such rules did get transplanted), but at the level of the Gaian system as set out in the Institutes of Justinian.132 It was this introductory textbook, with its systematic arrangement, that made law accessible to later civilisations. And even at a lower level of generalisation it was, again, not so much the detailed rules that got transplanted into later societies, but ‘blocks’ of sub-systems of law, such as sale and possession (see Chapter 3, section 3).133 This emphasis on systematics may not be that controversial in itself and should appeal to systems theorists 130 131 132 133 128 129

Del Mar (2020), at 78–124. For an interesting relatively recent French work see Rochfeld (2011). See Van de Kerchove & Ost (1988). G.1.8; D.1.5.1; J.1.2.12. Watson (1994). Watson (1981), at 14–22.

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(see Chapter 12, section 5).134 But what is controversial is Watson’s claim that the relation between the Institutes and culture is much more tenuous than one might think. ‘I would defy anyone’, he said, ‘to produce from the body of the work one scrap of evidence that the Institutes is in any way indicative of the specific religious, political, economic or social conditions of early Byzantium’.135 Indeed, he continued, if the work ‘had mirrored Byzantine conditions, it would have been influential in the west only with difficulty’.136 If Watson has a viable thesis it may well mean that the relation between law and culture is ambiguously complex, epistemologically, in that the relation operates at different levels and dimensions, and in ways that are different as well (see further Chapter 12, section 4). It should not, therefore, be envisaged, notes Jennifer Hendry, as a Them and Us debate.137 ‘That there are connections and interactions between the legal and the cultural is not in dispute’, she says. But ‘there is no general consensus regarding the nature of many of those connections and interactions, even within the field of comparative legal studies’.138 From this comparative law perspective, the idea that law is simply a manifestation of a culture would seemingly be put into question if Watson is right. The Roman model seems to have been transplanted into a range of different cultures while at the same time retaining particular features that are common to the legal systems of all, or many, of those cultures.139 The key vehicle for Watson was the introductory textbook (which he called ‘Nutshells’ after a celebrated series of study aids), whose value for Watson was that they had and have the capability of transmitting ‘legal rules, institutions, concepts and structures from one society to other, very different, ones’. Thus ‘they show that in large measure law does not emerge in any real sense from a society in which it operates’.140 Watson, writing in 1994, accordingly argued that those scholars ‘who believe law develops from societal conditions cannot accept the importance of Nutshells’; if they did, ‘they would have to change their field of study’.141 In fact, in more recent times there has been an increasing interest in introductory law textbooks.142 It may be that these recent writings on textbooks do not provide much insight into the relationship between law and culture, but they do

See Teubner (1993). Watson (1994), at 21. 136 Ibid. 137 Hendry (2017), at 183. 138 Ibid, at 181. 139 Watson (1994), at 22. 140 Ibid, at 2. 141 Ibid, at 22. 142 See eg Chambost (2014); Cabrillac (2017). 134 135

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suggest that Western law itself is a culture (as indeed previous chapters have surely established). Jennifer Hendry talks of culture being a matter of belonging. What, then, does a legal culture suggest? Is it a matter of belonging to a formalistic conceptual structure of institutions and concepts (Gaius) or norms (Kelsen) or rules (Hart)?143 Many of the introductory textbooks in European legal cultures tend ‘to offer a vision of unity of the law and its science before teaching it through specialist categories’.144 Within this legal space introductory textbooks would appear, then, to present a vision of a Western legal culture that is conceptually formalist, structuralist and monist, all other social norms being relegated to the outside of law’s boundary. In private law the model, in the civil law world, is Gaian (persons, things and obligations),145 while in public law it is Kelsenian (descending norms).146 Part of this cultural attitude is, as we have seen, bound up with the idea that law is a science and so, like mathematics or biology (cf Chapter 5, section 7), transcends particular social cultures.147 Thus in Germany, rather than books offering an introduction to law, there are introductions to legal science.148 Alternatively, does legal culture involve, as Hendry suggests, ‘acknowledgement of and engagement with the compound nature of law, which is to say, with the social norms, socio-political constellations, historical underpinnings, institutional arrangements, societal practices and population dynamics that inform the law’s social context, within a jurisdiction or legal “space”’?149 This vision of a legal culture sees the ‘legal space’ as a focal point for socio-political culture and for pluralism, with the result that this space is not one of conceptual unity as such but one of tensions and choices. Instead of attempting to fashion an epistemology of law founded upon some formalised conceptual structure one might, instead, see it as a space for the tensions and debates that characterise legal knowledge.150 Certainly, if one returns to the Roman heritage, law was to an extent a space for tensions and debate. But this space was very much a constructed one that enclosed law within a language of concepts, if not rules, and all debate traditionally took place within this conceptual structure. What the cultural turn has done is to put this space into a much wider context which has permitted another methodological and epistemological ‘revolution’. Not, perhaps, a revolution in

On Hans Kelsen and norms see Pfersmann (2003). Deumier (2017), at 93. 145 See Jallamion (2017), at 15–16. 146 See Pfersmann (2003). 147 On which see Champeil-Desplats (2016). 148 Schulze (2017), at 119. 149 Hendry (2017), at 184 (emphasis in original). 150 See further Samuel (2019). But Catherine Valcke offers an opposed view: Valcke (2018). 143 144

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the Thomas Kuhn sense, but certainly one that, in a wider historical context, will be viewed as another stage in legal thought, comparable perhaps to that of the humanist contributions of the sixteenth century (cf Chapter 5, section 3).151 This said, the actual change in methods has yet to emerge in any clear epistemological sense. The cultural turn is still at a relatively early stage where the debating positions are waiting to be fully worked out, in terms of theory and method. Legal pluralism is not yet any kind of established and coherent theory and even the relationship between law and culture is, thanks to writers such as Watson (and to an extent Teubner),152 uncertain in any causal sense (see also section 3 above; Chapter 12, section 4).

9.

CONCLUDING REMARK

Accordingly, while this chapter may seem a long way away from any Roman foundations, an interesting historical and cultural question is raised. Have contemporary methodological and epistemological debates finally moved beyond the reach of the Corpus Iuris? When one looks back over the debates surrounding the cultural turn, there are certainly issues that seem far removed from those discussed by the Roman jurists. Yet various concepts and notions that are to be found in the Roman sources do reappear, sometimes with important implications. One thinks in particular of the notion of an interest, a notion that is quite central to the culture-in-law problem. One might argue, also, that if the expression ex facto ius oritur is still a pertinent way of viewing Roman legal method and thinking then the culture-in-law issues that are being experienced in many Western societies, operating within legal systems influenced (if only partly) by the Roman heritage, ought to have profound legal implications. They are genuine ‘bottom-up’ issues. And so, what will emerge in juristic thinking and method? One possibility, which cannot be dismissed, is a retreat into the past. As we shall see, neo-formalism is making something of a comeback, at least in the common law world (although perhaps formalism never really waned in the civil law tradition) (see Chapter 9). Even if the move is towards a much more developed critical approach to law and legal method, it is worth retaining the observation of Panu Minkkinen: before you can break the rules you have to know what the rules are; or, to put it another way, if one is going to be critical, one has to be critical ‘of something’.153

Cf Fekete (2021), at 14–30. See generally Teubner (1993). 153 Minkkinen (2018), at 150. 151 152

7. Terminology and the foundations of legal theory If one had to identify a single ‘vehicle’ in which abstract and formalist thinking about law was carried from the Roman texts to the contemporary world, it must surely be terminology. The Roman sources, as we have seen (Chapters 3–4), were full of theory-generating terms operating at a variety of levels. There was the word law itself (ius), which attracted its own commentaries, followed by various divisions into different kinds of law such as the ius naturale, ius gentium, ius civile and so on. All of these sub-categories were rich in their theory possibilities. Other expressions, for example jurisdictio, lex, justitia and aequitas, were equally capable of acting as the foundation for theorising, while a whole range of more technical concepts such as universitas, dominium, possessio, ex contractu and res incorporalis could provide some solid underpinning to more abstract intellectual constructions. The purpose of this chapter is to examine the role of terminology in the development of formalist thinking in law.

1. INTRODUCTION ‘Terminology’, said Walter Ullmann, ‘is always a good signpost to underlying conceptions’.1 And there is no doubt that the Latin terminology of Roman law serves as a signpost not just to underlying conceptions but equally to the historical foundations of the theories and philosophies of law that were to evolve from the period when the Roman compilations were rediscovered. Whether the Roman jurists themselves, if they could have been miraculously reincarnated in the eighteenth and nineteenth centuries, would have recognised the intellectual constructions and interpretations that had been founded on the terms that they had fashioned is another matter. But in many ways this is to miss the point, since interpretations and theories are as much about the mentality of their age as they are about any inherent meaning within the terms themselves.2 Moreover, these terms should not be viewed in isolation since, on occasion at least, they can be seen as building blocks; theories have been constructed not

1 2

Ullmann (1975), at 62. Monateri (2018). 163

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just on single terms but on the interrelation between certain terms. As Otto Kahn-Freund famously put it: Society handles the institutions of law much in the same way as a child handles his bricks. It uses the same bricks all the time – or for a long time, – to-day to build a manor house, to-morrow to build a factory, and the day after to build a railway station. The number of bricks is limited: the manor house may have to be pulled down to make way for the factory. But – this is Renner’s positivist axiom – the bricks remain the same. The law provides the bricks. What society makes of them, is none of the lawyer’s business.3

This metaphor or analogy is useful because it illustrates how the same ‘bricks’ (terms) can be used to construct different theories at different times. Where perhaps it is a little misleading is in the idea that the bricks themselves are solid and unchanging. In truth this is far from the case, as the meanings of terms have changed over the centuries and thus it is in their form rather than in their substance that they act as building blocks. Other writers have, accordingly, used different metaphors; an example is the metaphor of Roman law as a ‘toolbox’ or ‘reservoir’ of words whose original realities and meanings had long disappeared but whose ‘appropriation’ by the medieval jurists was to be the foundation for a second life of Roman law.4 ‘To discover words’, writes one legal historian, ‘to give them a precise definition, that is the first step; and it is only after this that one can combine them and put them into a relationship one with another, to classify them and to compare them, in a word to reason with them’.5 The importance, therefore, of the Glossators and their method (see Chapter 5, sections 1 and 2) is that they initiated the renaissance of Roman law learning in applying a grammatical approach to the texts. They explained each difficult word. It is in these explanations that one can begin to see the development of theories with regard, for example, to the power and jurisdiction of emperors and princes (imperium, jurisdictio), to the meaning of justice (justitia) and to the various types of law (ius) to be found in the Roman texts (ius naturale, ius gentium, ius divinum and so on). The Glossator Roger Vacarius (c 1120–1200), who taught Roman law in England, indicated how the Glossators were beginning to ‘theorise’ on what amounts to legal knowledge. He said, repeating the views of Johannes Bassianus (died c 1197), that law can be approached (modus tractandi) in three ways: that is, through definition (per diffinitionem), through the explanation of its terminology (per terminorum solutionem) or though

5 3 4

Kahn–Freund (1949), at 85–6. Carbasse (1998), at 159. Ibid (emphasis in original).

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classification (per divisionem).6 If one adds to these approaches the scholastic dialectical method of divisio and distinctio together with the refinement of the syllogism and principia, one has many of the building blocks in place for the construction of legal theories. Another element in the construction of theories and hypotheses is the posing of questions, and this highlights a further reason why many legal theories have their immediate roots in the work of the commentaries of the medieval jurists. This is not of course to suggest that the Roman jurists themselves failed to fashion theories about law; as Aldo Schiavone’s work on the development of ius in the Roman era shows, they clearly did, and differences between jurists about the nature of ius emerged over the centuries in which these jurists wrote.7 However, the time gap between the ancient and medieval worlds meant that there were some questions which worried the Glossators and Post-Glossators that probably would not have even occurred to the Roman lawyers. For example, the Glossators asked why there is no definition of ius (law) in Justinian’s Institutes. Vacarius records various responses, but concludes that, as we have seen, definition is but one way to understand legal knowledge and that the Institutes had chosen to put the emphasis on classification (per divisionem) rather than definition (cf Chapter 3, section 3).8

2.

TERMS AND NAMES

The concepts, categories and institutions that form the foundations of legal thought are, then, in themselves very old. The great majority – even those now employed in the common law world – go back to the Roman sources and some of them seem to carry the same definition attributed to them if not in the Roman sources themselves then in the medieval interpretations of these sources. Does this reduce law, if viewed from a diachronic perspective, simply to a history of a disciplinary terminology – a history of names and terms? This question is far more complex than it might at first appear – first, because the traditional idea of terms denoting an object proves especially difficult with regard to law in that often the word itself is the object. In other words, there is no objective object existing ‘out there’, so to speak. Terms such as ‘contract’ or ‘ownership’ might be seem to denote an object out there in society but, as will be seen (section 7 of this chapter; Chapter 8, sections 7 and 8), such apparent social objects prove elusive at best.

Vacarius, Lectura, J.1.2pr (De Zulueta & Stein (1990) edition). Schiavone (2017). 8 Vacarius, Lectura, J.1.1pr. 6 7

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The second reason is that words themselves are problematic. This problem manifests itself at different levels: there is the everyday problem of interpreting words and expressions in legal texts – a problem that is associated of course with the whole history of law in Europe (see Chapter 4, section 4)9 – and there is the problem of what is called the lexical unity.10 Do individual terms such as ‘contract’, ‘ownership’ or ‘possession’ have meaning in themselves, or can each term only be properly understood within certain structural systems? Can one learn law just from a legal dictionary or must one also learn the relationships between the different words to be found in such a dictionary? The structural systems themselves that are in play with respect to words are various. The statement ‘the moon is made of blue cheese’ is perfectly correct linguistically; that is to say, it is correct within the system of grammar and syntax. Whether it is correct in terms of the information that it is transmitting about an object (the moon) is another matter. Accordingly, as a French language specialist has observed, a name must be understood within three classes. These are, first, as a central object in logic; second, as part of a lexigraphy, that is in relation to verbs and adjectives; and third, as a terminological object, that is, within a system of knowledge such as astrophysics, biology or law.11 This might seem obvious, but, as we shall see, the problem of lexical unity in law as a body of knowledge is complex because the information conveyed by a single legal word is quite limited. This single word issue leads on to a further level of difficulty: the dichotomy between terms and names. A name, or proper name, denotes a single thing or person, such as the river Thames or Ronald Dworkin; such a ‘class’ is limited to a single object. A term, in contrast, denotes a category or class that is not limited in the same way and may often be indeterminate.12 The distinction can prove fundamental in legal reasoning within a system where reference to previous cases is of importance. Take a case involving liability with respect to a named object such as a specific bottle of ginger beer. If a later case arises involving, say, an item of clothing that proves dangerous, a crucial question is whether any rule or provision laid down in the first case attaches to the named object (the bottle of ginger beer). If it does, it could be argued that the first case is irrelevant to the second. But if the rule or provision is seen to attach to a term such as ‘product’ the reasoning position is transformed, since it will become very difficult to distinguish the first case.



See eg Maclean (1992). Rey (1992), at 19–20. 11 Ibid, at 21–2. 12 Ibid, at 26. 9

10

Terminology and the foundations of legal theory

3.

167

TERMINOLOGY AND DEFINITION

Many of the technical words employed in law are terms and thus have the potential to be indeterminate. What does a term such as ‘contract’ or ‘property’ include? One approach to mastering this terminology is through definition, which has as its aim to limit the indeterminate nature of a term. But this exercise is also fraught with difficulties. Two in particular affect law. The first is this question: What does it actually mean to define a term such as ‘ownership’? One classic definition is to be found in article 544 of the French Code civil: it is ‘the right (le droit) to enjoy and dispose of things in the most absolute manner, provided that one does not make a usage prohibited by legislation or by regulation’. One can immediately see that the definition cannot stand alone, since it is necessary to understand what is meant by ‘right’ (droit). This latter term has been defined as an ‘individual power at the disposition of individuals’ employed to satisfy a legitimate human interest.13 Yet this definition equally does not stand alone. What is meant by the terms ‘power’ and ‘legitimate interest’? If one is to try to answer this question, it is necessary to reflect both upon the word ‘definition’ and upon the word ‘term’. As Alain Rey has observed, the two are linked; the first, ‘define’, from dé-finir, implies a limit, that is, an end (finir), while the second implies a particular end or result (terminate).14 Terms within a discipline need therefore to be distinguished one from another and this is achieved through definition. Yet these different terms in law are not isolated, as has been seen with ownership, which means that ‘one defines, not words, but terms organised into structured systems and reflecting a conceptual organisation, formal (consistent), whether or not considered as reflecting the structures themselves of the entity’.15 Yet this is not the only definitional possibility. One can define a term by its function: what does the term to be defined do? Or one can define a term in a traditional hermeneutical manner: what does the term – seen as a sign – signify? What is its sense or deeper meaning? This epistemological ambiguity, so to speak, surrounding definition is part and parcel of some more general tensions that underpin the discipline of law. And, in turn, it is these tensions that can lie beneath debates about theory. The second difficulty is the distinction between definition and description. To describe a term – to describe, say, ownership – is not the same as defining it. According to Rey, the distinction lies in traits that are pertinent and

Rochfeld (2011), at 153–4. Rey (1992), at 40. 15 Ibid, at 41. 13 14

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non-pertinent.16 Definition has to include all traits that are pertinent to the signification of the term to be defined (linguistic definition) or all the conceptual traits, and only them, if it is a matter of conceptual definition. Description, in contrast, can include traits that are both pertinent and non-pertinent, the latter being characteristic rather than pertinent traits. ‘In fact’, says Rey, ‘many dictionary definitions (linguistic, distinguishing senses and usages) and above all encyclopedic definitions (distinguishing classes of objects and of notions) are descriptions’.17 This distinction between definition and description is particularly relevant for the discipline of law, because not only is it often difficult to distinguish a law book aiming to define legal terms and concepts from one that sets out merely to describe them; it is also difficult because the classes and categories employed by lawyers are themselves variable. There are some conceptual categories where the ideal is, or once may have been, to define a pure synchronic system where all conceptual ambiguities are eliminated, such systems requiring of course a perfect language, something that in truth faces insurmountable problems.18 There are other categories that are based on an empirical factor acting as a focal point and these tend to be descriptive. Between these two poles – the purely conceptual categories and the empirical descriptive ones – there are categories that may be partly conceptual and partly descriptive. Indeed, some categories may start out as simply descriptive classifications but over time attract a theoretical dimension that infuses them with an increasing conceptual orientation (one thinks of the history of labour law). In addition to these difficulties attaching to categories and definitions, there are some terms that are in themselves ambiguous, either because they are open-ended or rather vague or because the same term is used within different structured systems. Take the legal term ‘interest’, which is both difficult to describe, let alone define, and ambiguous because it has a different meaning in English real property law than it does in, say, administrative remedies law or the law of damages.19 Indeed, a strict general definition of the term interest is probably impractical. It is probably impractical also because the actual ‘object’ which the term ‘interest’ is attempting to identify is itself vague as an issue of fact, for it embraces a whole range of situations. There are certainly situations recognised by the law where an interest is identifiable either within specific facts (parents vis-à-vis their child’s local school) or more generally attaching to a class of persons (for example the interest of consumers), but a term such as interest is not one that simply reflects any given social situation. It is one

18 19 16 17

Ibid, at 41–2. Ibid, at 42. Ibid, at 42–3. See generally Samuel (2018), at 285–328.

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of those technical terms that can itself modify the ‘real’.20 For example, the question whether a particular claimant has had a legally recognised interest invaded by the defendant’s wrongful act is not just an issue of fact. Some types of harm or damage, even if a lay person would recognise them as such, are not considered harm or damage in law (for example, economic loss in the tort of negligence). The point of raising this terminological difficulty is that despite the vagueness of some legal terms, there is a long history of jurists attempting to embed a legal methodology in a precisely defined vocabulary. Once such a precise vocabulary of terms had been achieved, it has been argued, legal solutions would follow deductively. Perhaps today the dream of such deductive certainty has been abandoned, at least by many, but the search for clarity of meaning is still a live project. ‘The purpose of this present work’, writes Martin Hogg in the introduction to his recent book on the law of obligations, ‘is to expose linguistic uncertainties and confusions where they exist, and to seek to identify the various meanings which have been ascribed to the words selected in the various systems chosen for study’.21 In quoting Professor Hogg the aim here is not to question the validity of the exercise that he is pursuing; quite the opposite, since clarity of meaning can do no harm. But it is to emphasise the continuing importance of terminology as a focal point for theoretical reflection in law and its relationship with legal method and reasoning.

4.

DEFINING LAW (IUS) ITSELF

The Romans did, however, define in the Digest the term ius (law) as being the art of what is good and fair (ius est ars boni et aequi), the word itself being derived from justice (iustitia).22 The definition is attributed to Ulpian (170–223 ad), who in turn attributed it to Celsus (67–130 ad), and it is the only definition as such of law itself in the Roman sources. What, then, is meant by justice (justitia)? According to Ulpian, justice is the constant and perpetual desire to give every person his legal due (Iustitia est constans et perpetua voluntas ius suum cuique tribuendi).23 And, as for law itself, the principles are to live honestly, to injure nobody and to give each his due (honeste vivere, alterum non laedere, suum cuique tribuere).24 To be learned in law (iuris prudentia),

Rey (1992), at 86. Hogg (2017), at 3. 22 D.1.1.1pr. 23 D.1.1.10pr. 24 D.1.1.10.1. 20 21

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continued Ulpian, is to be acquainted with divine and human things and to know (scientia) justice and injustice.25 However, there is much more in the sources as to its meaning (rather than strict definition) and so, for example, the jurist Paul (contemporary of Ulpian) said that the word ius can mean several things (Ius pluribus modis dicitur).26 It can mean what is good and fair, as in natural law (ius naturale); what is available to all, that is, the law of any particular state (ius civile); what results from the edicts of the Roman magistrates (ius honorarium); and the place in which the law is administered (locus in quo ius redditur).27 Another jurist, Marcianus (also a contemporary of Ulpian), adds, interestingly, that the word can equally mean relationship or connection, such as a connection by blood or marriage (ius cognationis vel adfinitatis).28 Perhaps a more practical way of understanding the term ius as a body of knowledge is to look at its source contents, which, by the time of Gaius, encompassed not just the answers given by jurists to legal problems (responsa prudentium) but all the various species of legislation.29 It had become an all-embracing term and one now in the process of orientating itself towards imperial power as the ultimate source of its normative validity.30 Nevertheless, these sources were those of the ius civile (the law of the Roman state) rather than ius in general and so Ulpian identifies, in addition to the ius civile, several other types of ius. He first distinguishes private law (ius privatum) from public (ius publicum) and then says that the former has a threefold division; it is derived partly from the ius naturale, partly from the ius gentium and partly from the ius civile.31 The ius naturale, continues Ulpian, is the law taught by nature to all animals and from this law is derived matrimony, which applies not just to humans but to all animals.32 The ius gentium is the law all societies of people use and is differentiated from natural law in that it is restricted to humans.33 Gaius said that the ius gentium was founded on natural reason (naturalis ratio).34 Is it possible to detect within all this terminology a legal theory? There are, evidently, a number of possibilities, one of the most obvious being a focus on the category of ius naturale (see below, section 5). Yet the position is, at best,

D.1.1.10.2. D.1.1.11. 27 Ibid. 28 D.1.1.12. 29 G.I.2. See also D.1.1.7 (Papinianus). 30 Schiavone (2017), at 354–74. 31 D.1.1.1.2. 32 D.1.1.1.3. 33 D.1.1.1.4. 34 G.I.1; D.1.1.9. 25 26

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complicated. Jones, for example, sets out the debate of his time (first half of the last century), which pitches the Classical jurists against the post-Classical Byzantine law professors. On one side of the debate is the argument that it was the Classical jurists who turned a ‘complex of actions into an ordered scheme of rights and duties’.35 On the other side is the argument that research into interpolations in the Digest has ‘established that the creative force working in the law of the later Empire is to be found in the teaching rather than in the practice of the law – in the academic and pedagogic influence of scholars giving instruction in the schools of law’.36 Jones himself thought that both of these positions were over-simplistic and that anything ‘that looks like abstract theory in the Digest is not necessarily post-Classical, even if it be Greek.’37 Aldo Schiavone, if his research represents a more up-to-date view, emphasises the work of particular Classical jurists whom he sees as holding a variety of theoretical, and sometimes opposed, positions. His thesis in the end considers Ulpian as one of the key jurists who, along with other jurists of his time such as Papinianus (142–212 ad), shifted the understanding of ius from one dominated by formalism and fragmented casuistry to one of justice and order.38 As Schiavone asserts, in ‘reality the idea that Ulpian wanted to transmit was that of a natural law entirely detached from the actions of men and the intervention of history’. But ‘Gaius had seen things very differently: for him, ‘natural reason’ manifested itself entirely on the historical plan, even if a universal history’.39 This reality for Ulpian resulted in his detaching the ius naturale from the ius gentium.40 And, says Schiavone, it is this detachment that was to open the way for the theologicalisation of nature which came to dominate Post-Classical Christian thinking and that of later Christian Europe.41

5.

IUS NATURALE

This idea of a ius naturale was to survive Ulpian. Even as late as the eighteenth century, a French jurist was asserting that the civil obligation, as defined by Justinian, is either ‘derived from natural law and civil law combined’ or ‘derived from civil law alone’.42 However, the expression ius naturale had, by

Jones (1940), at 7. Ibid, at 7–8. 37 Ibid, at 10. 38 Schiavone (2017), at 432. 39 Ibid, at 438. 40 Ibid, at 436. 41 Ibid, at 438. 42 Jean Joseph Julien, Élémens de jurisprudence, selon les loix romaines et celles du Royaume (1785), Book III, Title I, § I. 35 36

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the time of Grotius, acquired an ambiguous meaning in that it could be translated either as natural law or as natural right. Even in Roman law the notion could sometimes acquire this ambiguous element; a person who killed another in self-defence was not liable on the basis of natural reasoning (naturalis ratio).43 The text was not saying that a person attacked had a ‘natural right’ of self-defence, but it was perhaps getting close to such an idea. Indeed, there is one text attributed to Gaius in which he uses the expression naturalia iura, which, he says, cannot be destroyed by civil law reasoning (quia civilis ratio naturalia iura corrumpere non potest).44 It would be dangerous to translate iura as ‘rights’, but it is certainly getting very close to the idea that there are natural rights. From the Roman texts, then, it was possible for later jurists to associate the category of ius naturale (often in common with the ius gentium) with three other notions, namely principia, iura and ratio. There was the idea of trans-cultural and trans-historical immutable principles of natural law, as identified by jurists such as Grotius (Chapter 5, section 6). There was the notion that there were natural rights which did not depend on the existence of any established legal system. And there was the idea of a law established by natural reason (naturalis ratio). As regards the latter, there was something of a problem with regard to the Roman expression itself, since Ulpian said that it embraced the behaviour of animals – who, of course, did not possess natural reason. Thus, as Paulus de Castro commented, natural law is about nature itself, not just mankind (ab ipsa natura).45 More promising, then, was the ius gentium, with its foundation, according to Gaius, in naturalis ratio.46 Ulrich Zasius (1461–1536) thought that it was a mistake to distinguish the two (ius gentium et naturale non distingui specie), so paving the way for the association between naturalis ratio and natural law.47 What, then, was meant by ius naturale in the seventeenth and eighteenth centuries? In Roman and medieval times it was associated with nature, but several centuries later it was associated with reasoning in the sense of it being a category consisting of axiomatic principles from which other, lower principles and rules could be formulated through the use of deductive logic (see Chapter 5, section 6). As Leibniz put it, the principles of decision-making are based on the reasoning of natural law (Principia decidendi sunt ratio ex jure naturae).48 Nevertheless, the idea of nature did not D.9.2.4pr. D.4.5.8. 45 Comment on D.1.1.1.2. 46 G.I.1. 47 Zasius, De iustitia et iure, col 251, no 36. 48 GE Leibniz, Nova Methodus Docendae Discendaeque Jurisprudentiae (1667), § 71. 43 44

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completely disappear, and so in the late eighteenth century a work on Roman and French law based on Justinian’s Institutes, having quoted the Roman definition of ius naturale as containing what nature has taught animals, goes on to state that the obligation to feed one’s children thus comes from natural law.49 Such thinking seems not to have survived to the end of the eighteenth century. The first problem, as Jones noted, was exposed by comparative legal history. The ‘more widely the legal historian extends his field, the more convinced he will become of the impossibility and even absurdity of all attempts to formulate any concept of law, which will remain unchanged through all the varieties of legal experience’.50 The second problem, again as Jones noted, was that of duality. Jones pointed out that legal history might not have made a positive contribution to legal philosophy, but it did make the negative one of destroying any idea of natural law. And he continued: Thus, when interest in the philosophy of law was revived towards the end of the nineteenth century, the only hope of advance seemed to lie in putting the investigation upon a purely positive basis by clearing the ground of the fictions and assumptions which, under the name of natural law, were blamed for having made philosophy suspect in the minds of lawyers.51

This positivistic basis in turn destroyed any idea of dualism in law. ‘A rule either is or is not law’, Jones said. For ‘it cannot at the same time be both’.52 It might be tempting at this point to think that the Roman expression ius naturale had come to be suppressed by another Roman expression, ius positum or ius positivum. However, neither of these latter terms are to be found in the Roman sources themselves and they appear for the first time, it would seem, in the Middle Ages.53 Omne enim ius aut naturale aut positivum, said a twelfth-century Decretalist.54 This dichotomy is of course fundamental since, in a negative but dialectical sense, it gives shape, or some shape, to the expression ius naturale which is now a category that sees itself in opposition to positive law. The positivists might be able to discard natural law as a meaningless category, but it remained there as a challenge, like some king-over-the-water. Indeed, it re-emerges in the first half of the nineteenth century as a category now associated with the philosophy of law. ‘The philosophy of law, or natural law,’ wrote Henri Ahrens, ‘is the science which sets out the first principles of 49 Jean-Joseph Julien, Élémens de jurisprudence selon les loix Romaines et celles du Royaume (1785), De la justice et du droit, §§ VI–VIII. 50 Jones (1940), at 204. 51 Ibid, at 205. 52 Ibid, at 206. 53 Kuttner (1936). 54 Ibid, at 731.

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the law based upon the nature of man and conceived through reason’.55 This is an interesting view of natural law. since the author specifically based his book on German legal science ­– a science of concepts, admittedly, but as James Gordley says, these German positivists ‘thought that there were no principles of natural law’.56 What is rather intriguing therefore about this identification of legal philosophy with the category of natural law is that positivism as a legal philosophy, which of course rejects the existence of a ius naturale, is nevertheless part of the very category that it has rejected. Legal theory reintroduces into law a dualism that positivism rejected. Theorists, by definition, are making universalist claims about law, and in this sense their assertions are transnational and not part of a ius positivum. Theorists, then, are the new natural lawyers, though few of them would probably assent to this.

6.

IUS COMMUNE

Mention should be made in passing of another category that, before the ascent of natural law in the seventeenth century, formed part of the dualistic structure of the medieval legal world – a dualism whose foundation is in the work of the Post-Glossators. This is the dichotomy between the ius proprium and the ius commune, this latter term again being found in the Roman sources. Ulpian, for example, used the expression after having discussed the ius naturale and the ius gentium, suggesting that it was just a term covering universal law – that is, the two categories just discussed – in contrast to the law of Rome (ius civile).57 With the rediscovery of Roman law in the eleventh century, the expression ius commune was associated with the Post-Glossators (and Glossators), who developed, in their glosses and commentaries, a learned law that became a ‘common law’ (ius commune) of Europe; it was a meta-law which transcended the local laws of each region (iura propria).58 It was, in other words, a law founded, institutionally speaking, on the spread of law schools teaching Roman law throughout Europe. When there was (majority) agreement amongst the doctors over the meaning and interpretation of a text, one talked of the communis opinio doctorum.59 This ‘universal law’ had considerable authority thanks not just to the Roman texts upon which it was based but also to Latin, which was the common language, and this in itself encouraged a universal law of common concepts and mentality. Romano-canonical procedure and obligations were particularly important areas of law with universal influence, along with prop Ahrens (1855), at 3. Gordley (2013), at 214. 57 D.1.1.6pr. 58 Maruotti (2011), at 65–9. 59 Ibid, at 117–18. 55 56

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erty concepts; and of course the general principles of Roman and Canon law (regulae iuris) evidently added to the universal nature of the ius commune.60 With the gradual reception of this Roman law into the civil law of each developing (or developed) national state during the sixteenth and seventeenth centuries, the strict dichotomy began to lose its meaning.61 In fact, it was the ius proprium of each state (often legislative) that became the sole source of law. But this national law was one impregnated, to a greater or lesser extent depending on the country in question, with Roman law (as seen through the mos Italicus and the mos Gallicus), and, particularly (thanks to the universities), with Roman ‘legal science’.62 As Randall Lesaffer points out, Roman law, as a result of the humanists, had lost its absolute authority and became instead an intellectual authority; it was the best model yet to have been devised.63 Yet the nationalisation of law did not see the end of dualism; in place of a ius commune, the jurists turned their attention, as we have seen, to the ius gentium and the ius naturale. Nevertheless, despite the decline of dualism in the nineteenth century, Europe was to see a resurgence of the notion of a ius commune at the end of the twentieth century. This resurgence of a ius commune was founded on the idea that European Union law had reached a stage where the European countries should start thinking about a common European civil code.64 Writing at the end of the twentieth century and the beginning of the present one, Reinhard Zimmermann said: We are living in an age of post-positivism. The narrowness, but also the security, of a national codification, or common law, is increasingly left behind and we are moving towards a new ius commune. This new ius commune will have to be built around shared values and generally recognised legal methods as well as common principles and guiding maxims, and it will have to be shaped by judges, legislators, and professors, acting in cooperation with each other.65

Zimmermann argued that even in English law, large areas had been ‘inspired, characterised or at least influenced by the ideas and concepts, the rules and institutions as well as the general intellectual undercurrents of the European ius commune’.66 These views did not go unchallenged. Pierre Legrand thought that the European civil code project was a diabolical idea, since there were 62 63 64 65 66 60 61

Cf Bezemer (2010). Maruotti (2011), at 137–91. Ibid, at 189–91. Lesaffer (2009), at 354–5. See generally Hartkamp et al (2004). Zimmermann (2004), at 41 (footnotes omitted). Ibid, at 37–8.

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fundamental cultural and mentalité differences between the civil and the common law traditions.67 Indeed, he wrote ‘that there never was a jus that was truly commune’.68 In fact, as Legrand’s references indicate, there were and are plenty of legal historians who reject(ed) Zimmermann’s idea that the common law was part of the original ius commune. Yet whatever the situation, and despite a number of European codification projects resulting in concrete texts, the idea of a new ius commune has generally retreated, given the resistance by national lawyers and politicians to notions such as a European civil code; and of course Brexit has made the issue irrelevant for the English common law. The term, however, is unlikely to disappear from European legal thought.

7.

OWNERSHIP (DOMINIUM, PROPRIETAS)

It is unlikely to disappear because there are common concepts that are to be found in form, if not substance, in all of the Western legal systems. These concepts need some attention because they play an important role in theory building. The first of these is ownership. If one returns to the Roman sources, dominium and proprietas, the two terms giving expression to this concept, are nowhere defined.69 However, what does emerge very clearly from the sources is a distinction between two kinds of remedy: one which protects what today would be called property rights – the actio in rem – and one protecting personal rights, the actio in personam. Ownership was protected by a particular kind of in rem action, namely the rei vindicatio.70 Yet what are the rights of ownership? The Roman sources do not tell us directly, although there are hints. The jurist Ulpian identified two rights (iura) which formed part of the contents of dominium: the ius utendi (right to use) and the ius fruendi (the right to the fruits);71 and a text attributed to Paul talks of the usus fructus which implies a ius fruendi attaching to ownership.72 A third right is the ius abutendi, that is to say, the right of disposing of a thing by consuming it, transferring it or destroying it is evident in itself. Thus later jurists, who had trawled the Roman texts, identified the ‘rights’ (iura) that made up the notion of dominium, namely the right to use (ius utendi), the right to fruits (ius fruendi) and the right to alienate or even destroy (ius abutendi).73 The Post-Glossators also distinguished dominium from other iura, and so for example Baldus Legrand (2004). Ibid, at 257 (emphasis in original). 69 D.41.1.13. 70 D.6.1.1. 71 D.7.6.5pr. 72 D.7.1.1. 73 This is clear from jurists such as Doneau. 67 68

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talked of dominium being the fullest ‘right’ over a thing (est ius plenum) while a mortgage (hypotheca) was only semiplenum.74 However, they had difficulty in applying the exclusive nature of Roman ownership to the feudal society in which they lived and in which several people might have property rights in the same piece of land. The Glossators thus searched the Roman sources for a way to resolve the issue and found the notion of a long-term lease where the lessee was granted an actio in rem even although he was not the actual owner (ius emphyteuticarium).75 Using this institution they were thus able to split dominium into two kinds (duplex dominium), namely direct (dominium directum) and practical (dominium utile). The Lord had the dominus directus while the vassal had the dominus utilis.76 This was not an easy solution because in the Roman sources, Ulpian said duo non possunt habere dominium eiusdem rei in solidum (two people cannot have ownership in a single thing in solidum);77 however, Bartolus insisted on the distinction.78 One might note also that in the Roman sources there was in fact another expression for ownership, proprietas, that in later Roman law was synonymous with dominium but which the medieval jurists, or some of them at least,79 thought was to be distinguished from dominium. Baldus said that proprietas significatur directum dominium, non utile.80 It was the humanists who restored what they believed to be the true nature of dominium. Jacques Cujas (1520–90) asserted that there was no difference between dominium and proprietas (Dominium est proprietas rei) – returning to what was surely the position in Roman law itself81 – and further asserted that there was no such thing as dominium utile (Utile dominium nullum est).82 Hugues Doneau (1527–91) took a similar view: there was only one type of dominium (Uniuscuisque domini in re sua ius unum summum est, quod appellamus dominium)83 and the division between direct and utile was ‘crude’ (divisione vulgari).84 This said, the division is still to be found in Heineccius (1681–1741) at the beginning of the eighteenth century.85

Baldus, Comment on C.3.1.7 no 3. D.6.3.1.1; Patault (1989), at 106–7. 76 Faivre–Faucompré (2014), at 107. 77 D.13.6.5.15; and see generally Rüfner (2010). 78 Bartolus, Comment on D.41.2.17.1 no 5; Rüfner (2010), at 139–41. 79 Odofredus thought that dominium et proprietas sunt idem: see Faivre–Faucompré (2014), at 112 footnote 48. 80 Baldus, Comment on C.7.48.3 no 10; Faivre–Faucompré (2014), at 115. 81 See eg D.7.4.17. 82 See Prévost (2014), at 124–31. 83 H Doneau, Commentarii de iure civile (1596), Book 9, Chap 8, § 7. 84 Ibid, Book 9, Chap 14, § 28. 85 G Heineccius, Elementa iuris civilis secundum ordinem pandectarum (1785 edition), Book 41, Title 1, § 161; see Samuel (2016), at 17. 74 75

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But what of an actual definition of ownership? As already implied, the Romans did not seem to have fashioned one, or, if they did, such a definition did not find its way into the Corpus Iuris. One had to wait for Bartolus, who asked: Quid ergo est dominium? And he responded: est ius de rei corporali perfecte disponendi, nisi lege prohibeatur (What, then, is ownership? My reply is that it is the right in a physical thing of complete disposal unless legislation prohibits it).86 This definition is essentially repeated several centuries later by Heineccius,87 and in the Projet de Code Civil (1796) drafted by Jean-Jacques Cambacérès the owner is defined in article 415 as having ‘the right to enjoy and to dispose as one wishes, in conforming to the laws established for common necessity’. Finally, in article 544 of the Code civil of 1804, one finds an expanded version of Cambacérès’ definition: ‘Ownership (la propriété) is the right to enjoy and dispose of things in the most absolute manner, provided that one does not make a usage prohibited by legislation or by regulations.’ It would be idle to suggest that the social, political and cultural understanding of ownership (proprietas) has remained unchanged from Roman to modern times, but there is no doubting that, as a matter of linguistic form, the contents and the definition of ownership seems to have remained remarkably stable.88 The definition in article 544 reflects not just the three medieval ‘rights’ that constitute ownership – ius utendi, ius fruendi and ius abutendi – but also the actual definition fashioned by Bartolus. Moreover, the notion of proprietas even found its way into the English Sale of Goods Act 1979. One difficulty with respect to the division between real and personal rights is that there is no clear notion of ownership in English law.89 One cannot say that it does not exist, but it is fragmented in various different ways.90 The first way is between real and personal property, where ownership with regard to moveable property (goods) is expressed through the term ‘property’,91 whereas with respect to land it is a matter of degree: ‘full’ ownership of land attracts the expression ‘fee simple’ or ownership of the freehold whereas ownership for a term of years is called ‘leasehold’. From a civilian point of view, leasehold is basically a contractual relationship endowed with an in rem status. (Sadly, many leaseholders are discovering today that they are not really true ‘owners’ of their houses or apartments.) The second way is between substantive law and the law of actions, where ‘property’ might well mean ownership but the actual remedies protecting goods look to the notion of possession. It is the 88 89 90 91 86 87

Bartolus, Comment on D.41.2.17.1 no 4. See Samuel (2016), at 17. But cf Graziadei (2017). Taitslin (2019). See generally Lawson & Rudden (2002). See Sale of Goods Act 1979 ss 16–18.

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person who has the superior right to possession who will be entitled to the remedies against anyone who interferes with the owner’s title,92 and these remedies are to be found in the law of tort (trespass and conversion) as there is no independent rei vindicatio in the common law systems.93 The third way is between common law and equity, where, for example, the institution of the trust effectively splits the ‘rights’ of ‘ownership’ between two legal subjects. This fragmentation largely results from the historical facts that the English common law developed in the political context of feudalism and that there was little influence of Roman law thinking until the nineteenth century. As Sir John Baker notes, Roman lawyers and modern common lawyers talk in terms of a fundamental distinction between ownership (a legal right) and possession (a fact), but the word ‘owner’ was not much used by medieval lawyers.94

8.

IUS POSSESSIONIS

Sir John Baker notes the distinction between ownership and possession, making the point that one is based on law while the other is founded on fact. Ulpian famously emphasised the distinction in asserting that the two have nothing in common, but even he must have realised that this was an exaggeration (though an important one).95 The point he was making was that one could be an owner of a thing without being the possessor of it and one could be a possessor of a thing without being the owner.96 In truth, as Paul said, quoting Nerva the younger, ownership and possession were once united, in that the former grew out of the latter, and this was still the case with respect to wild animals and the like that were taken into captivity.97 The first person to possess such a thing also becomes its owner. The starting point for the relationship of possession was, then, one of fact; it was based upon the idea that one stands (sedibus) upon a thing, thus excluding anyone else from it – or, as Bartolus put it much later, possessio dicitur a pedum positione (putting your foot on it).98 92 See generally Lawson & Rudden (2002), at 63–73. The common law courts could order, and can still order, repossession of land: Manchester Airport Plc v Dutton [2000] 1 QB 133. An interference with a property right can also be remedied in equity by an injunction: see eg Kelsen v Imperial Tobacco Co [1957] 2 QB 334. 93 Historically speaking, all actions at common law are personal actions: see Sutton (1929). However, as mentioned, the courts can order repossession of land (Manchester Airport Plc v Dutton [2000] 1 QB 133) and also now goods (Torts (interference With Goods) Act 1977 s 3). 94 Baker (2019), at 241. 95 D.41.2.12.1. 96 D.43.17.1.2. 97 D.41.2.1.1. 98 Bartolus, Comment on D.41.2.1.

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This factual situation of possession was important for two basic reasons. It was protected by its own remedies (interdicta), which were separate from the actiones in rem (possessori non datur actio in rem, said Baldus);99 and long uninterrupted possession in good faith could confer ownership of the possessed thing (usucapio). The requirements for possession, according to Paul, were, as we have seen in a previous chapter, twofold; one acquired possession by physical act and by intention (Et apiscimur possessionem corpore et animo).100 In Roman law itself, possession as a concept turned out to be rather more complex than Paul suggests, in that there were situations which today would be considered possession but in Roman law were not. The medieval lawyers, interpreting this situation, thus distinguished between possessio and detentio (this latter term not being found in the Roman sources). Those who had mere detention could not avail themselves of the possessory remedies, nor could they acquire ownership through usucapio. However, leaving aside such complexities, perhaps the more interesting question is this: was possession a right (ius) or was it simply a factual situation that had legal implications? Of course, as we shall see below, care must be taken with regard to Roman law itself, since it is by no means clear that the Romans regarded ius as a ‘right’ in the modern sense of the term. As we have just seen, possession was not to be confused with ownership (although whether dominium was a ius is a matter of debate), and nor was it to be confused with a ius in re aliena such as a usufruct.101 Nevertheless, if possession was protected by its own remedies (interdicta), then by ricochet, so to speak, it would appear that a dispossessed person had a ‘right’ to bring an action, which, by further ricochet, means that he had a legal relation (ius) with the thing. Interestingly, there is a text attributed to Papinian concerning a person who buried money for safe-keeping while he went abroad and could not remember where he had buried it on his return. Had he ceased to possess the money when he finally remembered where he had put it? Papinian replied that the ius possessionis was not lost to him, and it is therefore tempting to translate this as his ‘right to possession’.102 Bartolus certainly saw the possessor as having a right: possessio habet ius.103 He also noted that while acquiring possession directly was an issue of fact, acquiring through another was a matter of law (per alium est iuris).104 Given this factual basis, possession, logically, could only be applied to physical things, and this was confirmed by Paul (Possideri autem possunt, Baldus, Comment on D.5.3.14 (13). D.41.2.3.1. 101 D.41.2.52pr. 102 D.41.2.44pr. 103 Bartolus, Comment on D.41.2.44. 104 Bartolus, Comment on D.41.2.1 no 2. 99

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quae sunt corporalia).105 Thus a servitude over land would not grant the right holder possession of the land in question, since the ius was a res incorporalis. Permisceri causas possessionis et usus fructus non oportet (possession and usufruct situations ought not to be confused), said the jurist Venuleius (of whom little is known).106 However, by the time of Gaius (second century ad) such a right holder was granted the possessory remedy ‘as if he was in possession’ (quasi in possessione),107 and this in turn led to the idea of quasi-possession, that is to say, the possession ‘of a right’ (qui possessionem vel corporis vel iuris).108 This idea found its way into the French Code civil, where possession is defined as ‘the detention or enjoyment of a thing or of a right’ (la detention ou la jouissance d’une chose ou d’un droit).109 Two interesting points arise out of this development. The first is the ‘systems’ nature of Roman legal thinking. The substantive law was originally very clear: possession could apply only to physical things and required, as Paul said, both intention (animus) and physical act (corpus). The point of possession as a legal artefact was that it was protected by its own particular remedies (interdicta). However, when these remedies were extended to those who did not have possession strictly speaking the logic of the system was that they did become ‘possessors’ of a sort. Possession thus became much less a question of a defining ‘theory’ or of an a priori regula iuris and more one of legal remedies; each factual situation depended on whether a possessory remedy should or should not be available or whether or not a person should be able to obtain ownership via prescription.110 The result was three types of possession whose function was bound up with other legal artefacts such as the acquisition of ownership and the availability of certain legal remedies. Accordingly, there was ‘natural possession’ (possessio naturalis), which was what the medieval jurists called detentio; there was the possessio ad interdicta, which entitled the possessor to the legal remedies protecting possession; and there was possessio civilis, which could result in the possessor becoming owner after a period of time (possessio ad usucapionem).111 Attempting, then, to define possession just in terms of a factual situation was inadequate; there was an interrelation between legal notions founded in reality upon a functional thesis. Factual description (A possesses the thing B) morphed into factual normativity (A has the ‘right’ to certain remedies in respect of thing B given D.41.2.3pr. D.41.2.52pr. 107 D.43.16.3.17; G.IV.139. 108 D.43.26.2.3. 109 CC art 2255 (formerly art 2228). 110 See generally Dias (1985), at 273–5. 111 Zenati & Revet (1997), at 334. 105 106

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these facts). As Christian Baldus notes, possession proves to be ‘a prime example of the complexities of interaction between law as a normative order and the non-normative contingencies in the world it seeks both to describe and to regulate’.112 A second point of interest is the idea that one could possess a ‘right’ (ius). What this in effect means is that one has a ‘right’ to a ‘right’, which must in turn mean that the ius possessionis merges with the res incorporalis. In Roman law itself this did not really matter, because the key distinctions were to be found in the law of actions (remedies) rather than in any coherent theory of substantive rights. The emphasis was on the action rather than on any theory of property, and this is why it was not difficult to extend the actio in rem to res incorporales.113 When, however, the emphasis moved from a remedy-orientated way of thinking to one that was rights-based, ambiguities began to emerge, especially with respect to the law of property. What was the structural relationship in this area of law? Roman law suggests that it was the relationship between persona and res, and where the latter was physical (res corporalis) it could be expressed in terms of a two-dimensional link. One brought an action against the thing itself (thus an action in rem). However, once the law recognised the res incorporalis as capable of forming property – a ‘thing’ – in the law of property, the two-dimensional image was gradually going to prove problematic. The relationship (ius) merged with the object itself, which, if it was also a ius, began to undermine any distinction between different types of ‘right’, and so even the law of obligations could be considered as part of the law of property (ius ad rem). Indeed, Gaius himself seemed to have recognised this merging when he said that the category of res incorporales included obligations (Chapter 3, section 4). The Romans maintained the distinction between property and obligations through the law of actions; what mattered was the distinction between the actio in rem and the actio in personam. The medieval jurists began to shift this emphasis to ‘rights’; one started to talk in terms of iura in rem and in personam.114 As we shall see (Chapter 9), modern civil codes maintain the distinction, but this whole question of ius as a ‘right’ needs further development in itself.

Baldus (2016), at 537. Zenati & Revet (1997), at 133. 114 Ibid, at 133–4. Ius in rem is not entirely absent from the Roman sources, but it is rare. 112 113

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183

RIGHT (IUS AND DOMINIUM)

The discussion about dominium (and proprietas) and possession and their relation with iura in re aliena leads on to a discussion about rights themselves. The Post-Glossator Baldus, for example, talked of ‘real rights’ (iura realia): ius dominii directi, ius dominii utilis, ius quasi dominii, ius haereditatis, iura servitutum realium et personalium.115 Added to these real rights were rights in personam and procedural rights, inherent perhaps in expressions such as ius obligationis and ius actionis.116 Doneau, of course, was to recast the whole of Roman law from the position of subjective rights (quod nostrum est) (see Chapter 5, section 5). What, then, is actually meant by the term ‘right’? For an answer one needs to return to Roman law. By the time of Justinian the formulary procedure in which the actio had an important role had disappeared. In a celebrated text to be found in Justinian’s Institutes – a text actually attributed to the early Classical jurist Celsus (67–130 ad) – it is stated that an action is nothing other than a ius to recover through judicial proceedings what is owed to one (Nihil aliud est actio quam ius quod sibi debeatur iudicio persequendi).117 How should one translate ius in this context? Most translations into English use the word ‘right’ (as indeed this present work has done on occasion), but this is controversial because it implies that the Romans thought in terms of rights and thus constructed their Institutes system on the basis that what were being classified were rights. Both Henry Maine (1822­–88) and Michel Villey (1914­–88) contested this implication, Maine asserting that the Romans had not attained the conception of a legal right as the term had come to be understood (that is to say, in the nineteenth century).118 ‘There are’, he continued, ‘undoubtedly, certain senses of Jus in which the meaning of “right” is approached, and even closely approached; but, on the whole, the Romans must be considered to have constructed their memorable system without the help of the conception of legal Right’.119 Villey’s view was similar. However, he based this view on the thesis that the modern conception of a right was the result of the merging of two separate concepts in Roman law, namely dominium (ownership) and ius (legal relation), and that this merging did not begin to occur until the period of the medieval Roman jurists.120 In Roman times dominium, as the word implies, was a form of potestas (power), but ius did not 115 Baldus (de Ulbaldis), Comment on C.2.3.28 no 19. He also used the expression ius proprietarii: Comment on C.3.19.1. 116 Baldus, Comment on C.2.1.3 no 5. 117 D.44.7.51; J.4.6pr. 118 Maine (1890), at 365. 119 Ibid, at 365–6. 120 See generally Villey (2006).

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have this power implication; it only gained it later when, in the Middle Ages, dominium was itself seen as a form of ius. Thus Baldus wrote: quod iura realia sunt ius dominii directi, ius dominii utilis, ius quasi dominii, ius haereditatis, iura servitutem realium et personalium.121 Real rights include direct and indirect ownership, quasi-ownership, the right to an inheritance and real and personal servitudes. Villey argued that dominium was never considered a ius in Roman times. But once the two had merged, argued Villey, the notion of ius gradually absorbed the potestas associated with dominium, thus giving the notion of a right its power dimension.122 Villey’s thesis did not escape criticism. For a start, it is not beyond debate that the Romans never regarded dominium as a ius; there are quite a few texts that employ the expression iure dominii, sometimes in a way that seemingly comes close to ‘right of ownership’.123 ‘The harshest criticism that could be made of Villey’s treatment of Roman law’, wrote Brian Tierney (1922–2019), ‘is that he selects a few suitable texts, drapes a whole theory of law around them, and then refuses to take seriously any texts that do not fit his preferred theory’.124 However, Tierney added that Villey was making a valid point when he said that ‘Roman jurists did not conceive of the legal order as essentially a structure of individual rights in the manner of some modern ones’.125 Nevertheless, Peter Stein was of the view that between ‘the time of Gaius and the time of Justinian, considerable progress had been made in developing the notion of an individual right and consequently there was a movement towards looking at the whole of the law as a set of rights conferred in certain circumstances on persons capable of holding them’.126 Probably Tierney’s view more accurately sums up the position with regard to Roman law itself, for even Peter Stein recognised that the key jurist who re-interpreted the whole of Roman law in terms of subjective rights, and using the institutional system, was Hugues Doneau (1527–91) (see Chapter 5, section 5).127 The modern expression ‘right’ carries an ideological flavour that makes it a dangerous term to apply even to Byzantine Rome. Thus the word ius is problematic and it was probably only in the post-Roman world that ius began to used in the individualistic sense of a subjective power. As a French professor has pointed out, it is one of the consequences of modern individualism that the law is now mainly seen through the prism of ‘rights’, Baldus, comment on C.2.3.28 no 19. See further Sol (2016). 123 See in particular D.39.2.15.33; D.48.6.5.1. 124 Tierney (1997), at 18. 125 Ibid. 126 Stein (1984), at 128. 127 Stein (1993). 121 122

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which individuals see as things given to them by the legal system.128 Villey, as we have just mentioned, saw the notion of a right (droit subjectif) as being the result of the merging, in the post-Roman world, of the notions of dominium (ownership) and ius, the former endowing the latter with its potestas (power) element. It is, as we have just seen, probable that the notion of a right had its origins in the law of property, that is to say, in the relation between a person and a thing. The word dominium itself indicates that the relationship was one of power and that an action in rem was not one based upon assessing the behaviour of the defendant. It was an all-or-nothing action. Either a claimant was an owner, or a person with a ius in re, and thus was entitled to vindicate his object, or he was not. Yet even if the Romans did not conceive ius in the modern sense of a right, they seemed nevertheless to regard ‘rights’ (iura) as something separate from legal actions. As we have mentioned: Nihil aliud est actio quam ius quod sibi debeatur iudicio persequendi.129 This statement by Celsus suggests, then, that law existed as a separate body of legal relationships and connections (if not rights in the modern sense) independent of the system of legal remedies (actiones) upon which the whole of Roman law was based up to the time of Ulpian. Gaius, as we have seen, thus subdivided ius into the ius personarum (law of persons), ius rerum (law of things) and ius actionum (law of actions) (see further Chapter 3). In other words, there are laws (iura) which attach to people as people, to things and to legal actions. Indeed, in Roman law there was something of a ‘right’-like sense to the notion of ius in aspects of the law of property. The expression ius in re habet is to be found in the Roman sources, and it is difficult to resist the temptation to translate this as having a ‘right’ in someone else’s property.130 To think like this is possibly to make a historiographical error.131 However, what is important to retain is that concepts in the Roman law of property were more ‘absolute’ than was generally the case with regard to the law of obligations, because one was actually claiming against the thing (res) itself. It was matter of an actio in rem rather than an actio in personam and originally the thing itself had to be in court.132 And once something had been adjudged as belonging to a claimant, the judge had to pronounce in the claimant’s favour.133 Professor Birks was, then, probably right in his metaphorical analysis that the law of property was to be seen in terms of a rope between a person and a thing Rochfeld (2011), at 149. D.44.7.51; J.4.6pr. 130 D.9.4.30; Gaius uses the same phrase in D.39.2.19pr. And see Tierney (1997), at 17. 131 Villey (2006), at 244–8. 132 G.IV.3, 16–17. 133 D.6.1.13. 128 129

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(whereas a personal action was like a rope between a person and another person).134 In short, the modern concept of a right is ‘property talk’ – vindication – extended to other areas of the law. However, the extension is not without some conceptual problems. What is the situation where the object of the right is itself an intangible ‘thing’ or res incorporalis – or, to put it another way, where the object of a right is another right? We have seen that the ius possessionis raises this issue. More generally, there remains the problem of definition, and one difficulty here is that the whole idea of a ‘property’ relation between a subject and an object can be extended indefinitely. Anything that can be objectivised can in theory act as something to be vindicated, endowing the expression ‘right’ with an ideological flavour. It can so easily become a political slogan, that is to say, it can be used by groups claiming any number of ‘things’. Indeed, in the 1970s there was even an advertisement that declared: ‘Your Cat Has the Right to Eat Whiskas.’135 Even if one restricts the expression to within the boundaries of law, almost any situation where a legal remedy is granted to a legal subject can be described in terms of a right. In other words, any ‘interest’ protected by the law can be seen as a ‘right’.136 Such an approach, at least from a methodological point of view, seems ‘bottom-up’ in its orientation; one identifies within a factual situation an interest or an expectation and then, by arguing that it should be protected, by the granting of a remedy one turns the interest or expectation into a ‘right’.137 Ubi remedium ibi ius. The alternative approach is of course to formulate a code of ‘rights’ – ubi ius ibi remedium – such rights being formulated in terms of abstract principia, axiomata or regulae iuris. Notable historical attempts at such an exercise, as we saw in an earlier chapter, were Domat’s Loix civiles (1644), Heineccius’ Elementa Juris Civilis Secundum Ordinem Pandectarum (1728) (and see Chapter 5, section 6) and the last two volumes of Pothier’s Pandectae Justinianeae In Novum Ordinem (1748–52), where he organised a mass of regulae iuris into an institutional whole following the Gaian plan. One might note that it was Doneau who perhaps facilitated this shift from remedy to right when he asserted that a right itself was the ability to bring an action (Ipsum ius, id est, facultas persequendi quam etiam actionem appellamus).138 Between these two poles the common lawyer Wesley Hohfeld (1879–1918) attempted to construct a model of jural relations based upon a precise terminology whose definitions were dependent upon a series of opposites and Birks (2014), at 13–14. ‘Whiskas’ being a brand name for a popular cat food. 136 Rochfeld (2011), at 155. 137 For an example see Samuel (2016), at 114. 138 Doneau, Commentarii de jure civili, Book II, Chap VII, § 5. 134 135

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correlatives. The central correlative is that between right and duty: if D owes a duty to C then C has a right against D. As he said, the word right tended to be used ‘indiscriminately to denote any sort of legal advantage, whether claim, privilege, power, or immunity’.139 However, in his scheme ‘the term is used as the correlative of duty’ and was to ‘be used solely in that very limited sense’.140 Viewing his scheme as a whole, Hohfeld summarised it in the following way: A right is one’s affirmative claim against another, and a privilege [or liberty] is one’s freedom from the right or claim of another. Similarly, a power is one’s affirmative ‘control’ over a given legal relation as against another; whereas an immunity is one’s freedom from the legal power or ‘control’ of another as regards some legal relation.141

The value of this scheme is that it permits one to distinguish, in particular, between a right and a liberty. Take for example a public car park owned by a local authority. A section of this car park is reserved for people who have contracted with the local authority, and paid a fee, to park in a particular numbered space, while the rest of the area is open without payment to any car driver who can find an unnumbered space. If one uses the term ‘right’ in an indiscriminate way, one could say that everyone has a ‘right’ to use the car park; but Hohfeld would have insisted that the non-payers had only a liberty. However, those who had paid for a particular numbered space could be said to have a Hohfeldian right, since the local authority was under a duty to these contracting parties to reserve their spaces. As for a power, Hohfeld said that this term applied, for example, to an owner of a chattel who decided to abandon it; he had the power (rather than a right) to do so.142 Another possible advantage of Hohfeld’s scheme is that it rejects the civilian idea that a right in rem is founded on a relation between person and thing, while a right in personam is based on a relation between person and person. All rights in rem, insisted Hohfeld, ‘are against persons’ and thus not against a thing.143 Hohfeld thought that the problem regarding rights in rem arose from the logic of the dichotomy that such a right is in opposition to a right in personam. He explained the problem as follows: Assuming that the division represented by in personam and in rem is intended to be mutually exclusive, it is plausible enough to think also that if a right in personam is simply a right against a person, a right in rem must be a right that is not against

141 142 143 139 140

Hohfeld (1919), at 71. Ibid, at 71–2 (footnotes omitted). Ibid, at 60. Ibid, at 51. Ibid, at 76.

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a person, but against a thing. That is, the expression right in personam, standing alone, seems to encourage the impression that there must be rights that are not against persons […] Such a notion of rights in rem is […] crude and fallacious; and it can but serve as a stumbling-block to clear thinking and exact expression.144

This thesis was not original to Hohfeld. Certain civilian jurists had also asserted that all rights could be reduced to personal ones since any right, including rights in rem, had to pass through the intermediary of persons; a right in rem simply imposed passive duties on the world at large.145 Indeed, there is even a Roman text that seemed to say recognise this point.146 Be that as it may, the rejection of the traditional view of a ius in rem is valuable insofar as it overcomes the conceptual problem of the person and thing relation in situations where the thing is a res incorporalis, that is to say, a form of res that exists only as a ‘right’. Let us recall the notion of possession. In Roman law possession was essentially restricted to a tangible thing and thus the ius (the ius possessionis) attached to the physical object. But what if possession is extended to an intangible thing? Does one then have a right to a right? In fact, as we saw in an earlier chapter, this was not a problem actually created by the original Gaian scheme itself, since what was being classified were actions, not rights. This said, Gaius famously includes obligations as a form of property, namely a res incorporalis, with the result that with the shift from an actio in rem to a ius in rem an attempt was made to reduce a three-dimensional plan (a ius obligationis as a ius in rem or a right to a right) to a two-dimensional one. However, there are problems with the Hohfeldian scheme. If a right is a form of potestas, then the distinction between a right and a power becomes less convincing. It is difficult to escape from the assertion that an owner has the ‘right’ (ius abutendi) to abandon or alienate his property. Another difficulty is this. What if the law places a legal duty upon citizens not to mistreat animals: does this mean that animals have rights? If animals are capable of having rights, must it not follow that they have duties? In fairness, this problem attaches analogously to babies, yet they undoubtedly do have rights. Another issue is that the Hohfeld scheme does not distinguish between ordinary rights and fundamental rights. Again in fairness to Hohfeld, this distinction did not really exist in his time; fundamental rights as a special class of rights is a consequence of some of the horrific events that occurred later in the twentieth century, although of course the notion of natural rights and then of the rights of man is much older.147 Judith Rochfeld nevertheless notes that the passage from Ibid, at 75. Rochfeld (2011), at 165–6. 146 D.2.14.7.8. 147 Rochfeld (2011), at 168–76. 144 145

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the rights of man to fundamental human rights was une mutation profonde.148 This mutation has made the distinction between fundamental rights and ordinary rights difficult and so it is not always easy to tell in which category a right should belong. And there is of course an important political and ideological element to this whole issue, which is particularly acute given the transnational character of the European Convention of Human Rights and Fundamental Freedoms. One danger is parochialism, which could well undermine any transnational legitimacy of the Convention and its interpretation by comparatists who themselves might be parochial in their outlook.149 The notion of a right, whatever its social benefits, is a highly charged concept. Roman law, then, certainly has given form to the modern notion of a right, especially with respect to the difference between rights in rem and in personam, and, also, to the idea of vindicating some ‘thing’ (tangible or intangible). But that is really all that it has done. Political and social thought two millennia later are so different that to talk in terms, say, of the Romans laying the foundations for contemporary human rights thinking is probably misplaced. Today’s strong emphasis on individualism was probably never reflected in the word ius in the ancient world. The interesting question is, of course, whether this change, or mutation, with respect to the notion of a ius could be classed as progress (cf Chapter 1, section 9).

10.

CONCLUDING REMARK

Roman terminology has not provided the foundations for all contemporary theories of the meaning of law (ius) and its sources (natural law, positivism, realism) – at least, not directly. Yet the expression ius and its extensions (ius gentium, ius naturale, ius commune and so on) have provided formal focal points for interpretation and theory building. These theories and interpretations are not themselves Roman, and modern positivism is far removed from what medieval canonists understood by the expression ius positivum. Even some expressions that seem Roman are not (the definition of ownership, for example, or ius reale). The key period for the development of a terminological foundation for modern theories was probably the medieval era, where the shift towards a more individualistic meaning of the term ius began, and where also regulae iuris started to undergo a change of epistemological status. The humanists, of course, were vital in emphasising the importance of interpretation. Yet terminology was only one aspect of theory building; taxonomy and systematisation was another.

Ibid, at 173. Besson (2019), at 1228.

148 149

8. Taxonomy and theory building This second chapter on theory building will continue to examine a number of key words, expressions and categories whose origin is to be found in the Roman sources. But the emphasis will be on classification and systematisation rather than on terminology itself.

1.

ORDER AND KNOWLEDGE (ARS ET SCIENTIA)

Given the long post-Roman history of the expression ius naturale, it may be that it is the comments in the Digest attributed to Ulpian that hold the key to one important strand of legal theory. Yet much depends upon what one means by theory in respect of law as a concept. One can certainly theorise about the sources of law and about its justification through references to nature, to natural reason, to justice, and so on. But one can equally theorise about how legal knowledge should be represented. How should it be organised internally? Does the internal organisation impact upon the understanding of ius itself? Accordingly, another two fundamental expressions to be found in the Roman texts are ars and scientia. Here law and philosophy came together in the work of Cicero (106–43 bc), who famously argued that no one had properly organised legal knowledge (cognitio iuris) into an ordered whole (see Chapter 3, section 3; Chapter 5, section 5). Some attempt at organisation had, it would seem, been achieved by the Republican jurist Quintus Mucius Scaevola (140–82 bc), who is described by the jurist Pomponius (second century ad) as having organised the civil law into generic categories.1 But what was needed, wrote Cicero, was an order (ars) which assured the connection between isolated and fragmented materials so as to give them a unifying and rational whole (quae rem dissolutam divulsamque conglutinaret et ratione quadam constringeret).2 This process involved, continued Cicero, the reduction of legal material into a restricted number of generic categories, and these generic categories into two or more species.3 Schiavone sees in this text of Cicero more than just a reflection on the state of legal knowledge. It had, he says, a much wider epistemological implication D.1.2.2.41. Cicero, De oratore, 1.41.188. 3 Ibid, 1.41.189. 1 2

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resulting from the coming together of theory and method. It was a matter of system. And so, according to Schiavone: There is no truth without system (senza sistema), said Cicero: the discourse on the state of legal knowledge (cognitio iuris) was thus able to slip immediately towards reasoning on the foundations of all knowledge. This slippage happened as a result of two progressive reductions. First, each knowledge was observed uniquely with respect to its foundation in a system (ars). Then, for the construction of this system, it was presupposed as indispensable the mastery of a specific technique (scientia), elaborated and conserved by philosophy. In this fashion, ars and scientia, system and the means of its realisation, encapsulated within a purely methodological horizon the problem of all cognitive development, reduced to the mastery of a method, exterior to the contents of each discipline, but capable of transforming such contents – here was the ancient rationalism.4

Schiavone’s translation of ars as system is to some extent problematic in that the idea of a ‘system’ has a modern connotation. If one is not careful it might be tempting to consider Cicero as an early ‘systems theorist’ (cf Chapter 12, section 5). However, one reason why this scholar adopts such a translation is to make the point that Cicero was later to abandon such a meaning of ars in favour of one that was more dialectical and analytic.5 He came to see legal history as being a more decisive factor.6 Yet, whatever the position, much depends upon how one defines ‘system’ and if one applies the idea of a model of interrelating elements that has the capacity in itself to produce new elements, then Roman law can indeed be viewed as a system. It created, for example, its own forms of intangible property (res incorporales) (see Chapter 3, section 3) and, in granting a town (universitas) its own ability to pursue legal actions, it effectively turned such a town into a person (see Chapter 2, section 3; Chapter 3, section 4; Chapter 4, section 6). This said, the Roman jurists themselves seemed little interested in adopting Cicero’s ideas – ideas which were, it seems, summed up in a lost Cicero book, De iure civili in artem redigendo.7 Even when it came to the compilation of the Roman laws under the command of Justinian, the materials contained in the Digest and in the Codex were subject to no rational ordering, only to an arrangement that was dictated by history.8 The one exception, as we have seen, was the Institutes of Justinian, a work designed for teaching and not practice. This book re-employed a scheme of arrangement that had been

6 7 8 4 5

Schiavone (2017), at 184. Ibid, at 186–7. Ibid, at 187. Schiavone (2017), at 185. Jolowicz (1957), at 61.

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the basis of Gaius’ Institutes published four centuries earlier and which, to a certain degree, gave expression to the programme advocated by Cicero.9 All law (ius) subdivides into the ius personarum (law of persons), ius rerum (law of things) and ius actionum (law of actions).10 The scheme was, of course, to have an extraordinary influence in the second life of Roman law, thanks to Doneau (Chapter 5, section 5), and it more or less forms the basis for all of the contemporary civil codes. In terms of theory, Peter Birks described Gaius as the Darwin of law.11 In fact, it has to be remembered, first, that the Gaian scheme is largely one that applies to private law rather than to law in general. And although there are in the Institutes a range of matters that today would be considered as belonging to constitutional law – slavery is an obvious example – it does not provide a theory of public law. Yet, as Ulpian asserted, the summa divisio is the one between the ius publicum and ius privatum (see Chapter 7, section 4). There are some clues in the texts, but it is only in the post-Roman world that a theory of public law very gradually began to develop, and even today this conceptual shape is not easy to determine.12 One problem is that a theory of public law can so easily morph into a theory of law itself. In addition, much taxonomical discussion, when viewed diachronically, has tended to take the form of dichotomies rather than arguments about the structure of the plan itself. Thus legal theorising has focussed on public law versus private law, persons versus things, rights in rem versus rights in personam, contractual obligations versus non-contractual obligations, substantive law versus procedure, and so on and so forth. It is in the context of these kinds of debates that taxonomical ambiguities and weaknesses have been exposed. In other words, the focus has often tended to be on a dialectical analysis of terminology rather than on arguments about the way in which law as a whole should be internally structured.

2.

PRIVATE LAW (IUS PRIVATUM)

According to Ulpian, private law is concerned with the interests of individuals (privatum quod ad singulorum utilitatem).13 This idea of the individual and his or her interest (utilitas) is in itself rich in theoretical possibilities, but it is the internal structuring of the ius privatum as set out in the Institutes that has largely shaped general thinking in this area. As we have seen, Jolowicz thought that this internal structure was logically weak (Chapter 3, section 3), and it

Schiavone (2017), at 365. G.I.8. 11 Cf Samuel (2000). 12 Bernardo Sordi talks of a public law before ‘public law’: see Sordi (2018). 13 D.1.1.1.2. 9

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was not until actions were replaced by obligations in the era of the humanists that the dichotomy between in rem and in personam relations or rights became more pronounced. It had become a generic difference. The Gaian plan has, however, remained one of the most enduring structures of private law thinking, and so it might be useful to examine its historical progression together with some of the key provisions in each generic category. In Gaius’ Institutes the plan was spread out over four books: Book I: Persons (de personis) 8. All law that we use relates either to persons (persona), or to things (res) or to actions (actiones). 9. The main division in the law of persons is this, that all men are either free or slaves.

Book II: Things (de rebus) 1. In the preceding book we dealt with the law of persons; let us now look at things. These are either in our patrimony or outside our patrimony 12. Further still, some things are corporeal (res corporales), others incorporeal (res incorporales). 13. Corporeal things are those that are able to be touched, as for instance land, a slave, a garment, gold, silver and indeed innumerable other things. 14. Incorporeal are those things that are not able to be touched, of the kind that exist in law, as for example an inheritance, a usufruct, obligations however contracted. 53. […] [W]e ought not to use improperly our legal right (male enim nostro iure uti non debemus) […]

Book III: Things (de rebus) 1–87 [Inheritance and succession] 88. Now let us proceed to obligations. These are divided into two main species: for every obligation arises out of either contract (ex contractu) or out of delict (ex delicto) […]

Book IV: Actions (de actionibus) 1. It remains for us to speak of actions. And if we ask what genera of actions there are, it seems in truth that there are two, in rem and in personam. 2. The action is in personam where we sue whenever someone is obligated to us either in contract or in delict, that is where we claim that he ought ‘to convey, to do or to perform’ (dare facere praestare oportere). 3. The action is in rem when we claim either a corporeal thing to be ours or some ius in a thing is connected to us, as for instance using or usufruct, going over,

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driving over or conducting water over land or of raising the height of a building or of having an unobstructed view […] 4. And so having described actions, it is clear that it is not possible for us to claim our thing from another in the following way: ‘if it appears it ought to be conveyed, for what is ours cannot be conveyed to us, since of course to be conveyed to us is to be understood as what is given to us is made ours and a thing which is already ours cannot be made more ours […]

Justinian’s plan in relation to the four books was slightly different: Book I 1. Justice and Law 4. There are two branches of this subject, public and private. Public law is that which pertains to the position of the Roman state, private that which pertains to individual interests […]

Book II 1. The Division of Things

Book III 13. Obligations An obligation is a legal bond (iuris vinculum) whereby we are bound by the need to perform something according to the laws of our city. 2. A following division sees a sub–division into four species: for they arise from contract (ex contractu), quasi contract (quasi ex contractu), delict (ex maleficio) or quasi delict (quasi ex maleficio)

Book IV 1. Obligations arising from delict As obligations from contract and quasi contract were dealt with in the last book, it follows for us to speak of obligations from delict […] 4. Actions It remains for us to speak of actions. An action is nothing but the ius of suing before a judge for what is owed to us […]

In the second life of Roman law, from the sixteenth century onwards, the institutional plan was applied to non-Roman law. Thus in Lancellotti’s Institutiones Juris Canonici (1563) one can see how easily canon law could be adapted into an institutional format:14 Translation Bernard Rudden.

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Book I: On the law of persons There are two types of persons, one layfolk the other clerics. Layfolk, whom one calls the people, are those permitted to possess earthly things, to marry, and to go to law. Clerics are those endowed (mancipati) with divine offices.

Book II: On the division of things In the previous book we explained the law of persons; now let us look at ecclesiastical things, their disposition and administration. The great division of ecclesiastical things is into two branches: for they are either spiritual or temporal. Spiritual are those which serve the spirit, instituted for the sake of the soul, such as the church’s sacraments, altars and the like. Temporal things are those which serve the body for the ecclesiastical ministers, such as lands, houses and tithes. Again, spiritual things are incorporeal or corporeal. Incorporeal are those which cannot be touched nor perceived by the senses: such as virtues and the gifts of God. Corporeal things can be touched and perceived by the senses; some are sacraments, some are sacred, some holy and some religious.

Book III: On lawsuits and their divisions It remains to consider lawsuits. A lawsuit is the discussion of a case which is duly (rite) carried out in court before a judge. The great division of lawsuits is this: some are secular, some ecclesiastical.

The same was true of customary law, as is illustrated by Antoine Loysel’s Institutes Coutumières (1607):15 Preliminary Book: Public Law 1. France is a hereditary monarchy tempered by laws. 3. The laws must be freely verified in the parlement. 4. All justice emanates from the king.

Book I: Persons 19. What the king wills, the law wills. 20. The king holds only of God and the sword. 21. The king never dies, or, the king is dead, long live the king.

Book II: Things 209. All property (biens) is moveable or immovable.

Translation Bernard Rudden.

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228. No land without a lord.

Book III: Agreements, contracts and obligations 356. Covenants conquer law (convenances vainquent loi). 357. Steers are tied by their horns, men by their words; and a simple promise or contract is as good as the Roman stipulation. 371. He does enough who gets it done (Assez fait qui fait faire). 404. No ‘cut–price’ offer is a good deal. 406. A thing is worth what it fetches. 407. As soon as one has sold a thing there is nothing there anymore (On n’a plus tôt vendu la chose qu’on y a plus rien). 414. You escape any deal by paying the difference (de tous marchés on en vuide par intérêt). 660. Promise and performance are two different things (promettre et tenir sont deux).

The Roman law learning was not, however, overshadowed by the works on customary law and the two systems found themselves merged, in terms of the plan, by works published in the eighteenth century. For example, Jean Joseph Julien’s Élémens de Jurisprudence, Selon Les Loix Romaines et Celles du Royaume (1785) was an updated version of Justinian’s Institutes and thus set out the private law as follows: Book I: Law of Persons Book II: Things and the Means By Which They Are Acquired Book III: Obligations Book IV: Actions and Judgements With codification this plan again became the basis of the internal structure, perhaps one of the clearest examples being Jean-Jacques-Régis de Cambacérès’s Projet de Code civil (1796): Book I: Persons 1. The French people exercise their political rights according to the way determined by the constitution. 2. The laws which organise constitutional powers form their public law. Those which regulate the relations of particular interests between citizens make up their private law. 3. Private law consists of:

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The civil state (état civil) of persons, Types of property, Social transactions.

Book II: Things (biens) 415. The owner has the right to enjoy and dispose things at will, in conforming to the laws established for common necessity. 506. Ownership is acquired by occupation; accession; conveyance; gift; succession; prescription. 685. Possession is only a fact. Any possessor is presumed owner in the absence of contrary proof.

Book III: Obligations 707. Obligations have two causes, agreements and law (la loi). 709. Without agreement and the meeting of minds (volontés) no agreement. 711. Any agreement, whatever the cause, creates law (loi) between those who have formed it. 745. One who causes damage is held to repair it whatever the fact that has given rise to it. 746. The damaging is regulated by the judges according to the circumstances and on an expert report.

However, the structure of the French Code civil (1804) was slightly different, representing in some ways a return to the original scheme in Gaius where obligations were not given a separate generic category but were subsumed under things: Preliminary title: On the publication, effects and application of legislation in general Book I: Persons Book II: Property and different modifications of ownership Book III: Different ways by which one acquires ownership As for English law, the institutional scheme was employed by William Blackstone in his Commentaries on the Laws of England (1765–9) but this work was to have limited impact, as we have seen (Chapter 5, section 8). However, after the abolition of the forms of action in the mid-nineteenth

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century, the institutional scheme became more influential.16 One particularly interesting example is a casebook published in the early part of the twentieth century; in Cockle and Hibbert’s Leading Cases in the Common Law: Presenting a Systematic View of the Whole Subject,17 the cases in Part II are grouped in the following way under the title ‘Common Law Rights and Duties’: Rights are of two kinds: – In rem, ie, which avail against people generally. I In personam, ie, which avail against a certain person or certain persons. II Rights in personam are: – Primary, ie, which do not arise from braches of other rights: these generally I arise from contract. II Sanctioning, ie, which arise from breaches of other rights. These arise: – (a) From breach of contract; (b) From breach of rights in rem, which breaches are called torts. All rights in rem are primary. The major portion of case law on the common law side is concerned with contracts and torts, and it is proposed to limit this work to those branches, rights in rem being dealt with under torts. All law can be considered, from another point of view, as falling under two heads: – The law applying to the ordinary individual, a branch usually designated I ‘The Law of Things’. II The law applicable to certain classes of persons who hold an exceptional position, such as infants, lunatics, etc. This branch is commonly designated ‘The Law of Persons’. In dealing with contract and tort this classification will be observed, and the whole subject will be dealt with as follows: –

See eg Markby (1871). See also Birks & McLeod (1987), at 23–6. Cockle & Hibbert (1921).

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(A) Law of Things Section I Contract II Tort III Damages (B) Law of Persons Section I Infants II Lunatics III Drunkards IV Corporations V Married Women VI Alien enemies VII Foreign Sovereigns VIII The King IX Public officials

Peter Birks was also keen to see English law set out according to the Gaian scheme.18 The problem is that the scheme does not fit; or, perhaps more accurately, English law does not conform to the dichotomies that arise out of the Gaian plan as developed by the later civilians. Much of the law of property, for example, is to be found in the law of obligations;19 and neither the distinction between law and equity nor the rigid division between real and personal property can easily be accommodated into Roman legal thinking. Indeed, English law has two quite separate law of property regimes.20 Nevertheless, if one insists on thinking in Gaian terms, the Cockle and Hibbert plan seems in some ways to capture English law better than a straight imposition of the institutional scheme at a high level of abstraction. But one might note how the two authors define the distinction between rights in rem and in personam. Rights in rem are rights against people in general (erga omnes) rather than a right, so to speak, in a thing (a point in fact recognised by the Roman jurists themselves).21 Moreover, if one recalls Gaius, what he was classifying was actions; yet if one tried to set out English law remedies according to the institutional plan, then the problems would resurge. All English law actions since the fourteenth century have been personal actions.22

See eg Birks (1997). See eg Torts (Interference with Goods) Act 1977. 20 See Lawson & Rudden (2002). 21 D.2.14.7.8. 22 Sutton (1929). 18 19

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LAW OF PERSONS (IUS PERSONARUM)

As will be evident from the schemes above, the starting point of the institutional system was the person, for, according to one Roman jurist, all law was constituted for the sake of man (cum igitur hominum causa omne ius constitutum).23 The Latin term persona has a long and complicated history. Among others, Hobbes tells us it that started life as the mask in Greek and Roman theatre, where a single actor played more than one part, with different masks representing different characters.24 It ended up as a technical legal term representing the capacity of a legal subject to be the bearer of legal rights and duties.25 In Roman law itself persona was never, as such, the focal point of any general theory or specific definition (that was never the Roman way).26 But it was nevertheless an institutional focal point, inasmuch as it assumed a specific role in the construction of certain rules and was a term to be contrasted with res (things). It was the medieval jurists who consolidated the expression persona into a legal notion. Baldus said it was clear that the term ‘persona’ applied both to individuals and to corporations: Patet ergo quod hoc nomen, ‘persona’, quandoque ponitur pro singulari quandoque pro universali.27 One talks today of a ‘legal subject’.28 In modern civil law the law of persons can be divided into two broad areas, namely legal personality and status. The former is concerned with the nature and definition of the legal subject (for example, children in the womb, companies, associations), while the latter has been described by the House of Lords as ‘the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities’.29 In truth the law of persons is much more complex than this broad division suggests, in that it has come to embrace not just company law (and associated groups), nationality (aliens and citizens), aspects of mental health law and the like, but also family law, including the law relating to children. These subjects are often intimately tied up with the law of things (property and obligations) and law of actions (remedies). Indeed persona and partrimonium (a person’s assets and liabilities) are inextricably inter-linked, in what one French jurist has described as a miroir économique.30 And thus in some respects the arbitrary allocation of D.1.5.2. T Hobbes, Leviathan (1651) chapter XVI. 25 Duff (1938), 1–26. 26 Ibid. 27 Baldus, Comment on C.6.26.2. 28 Rochfeld (2011), at 16. 29 The Ampthill Peerage case [1977] AC 547, at 577. 30 Rochfeld (2011), at 354. 23 24

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a subject such as company or family law to the law of persons can appear both conceptually and empirically artificial. Nevertheless, there is a logic to the inclusion of family law within the law of persons, since marriage is more than a contract between two individuals; it is an institution capable of attracting its own rules, and marriage itself is a form of status. Thus Cockle and Hibbert include in their list married women, indicating the important point that marriage itself is in fact a status. Whatever the complexities, it could be argued that the law of persons remains a valuable category for orientating thinking towards the human as a starting point for legal taxonomy. This said, what actually is meant by the human person? The answer may at first sight seem obvious, yet it should by no means be assumed that all human beings, even in modern law, automatically have legal personality. Unborn children present particular problems in that they have interests but usually not full personality;31 and the death of a human does not always extinguish the right to sue.32 Indeed, there is now, as a result of technological advances, an issue as to what amounts to death.33 And determining the moment of death can on occasion be important for succession purposes.34 Disappearance is another problem. How long should the authorities wait before pronouncing the death of such an absent person? French law lays down that those with an interest in the matter can apply for a presumption of absence with regard to a person who has disappeared,35 and this presumption can, after ten years, be turned into a declaration of absence by a judge,36 which has the effect of treating the person as dead.37 (But what if the ‘dead’ person re-appears 20 years later? Can he or she recover his or her property?) Western legal systems once recognised civil death, but this has almost completely disappeared in modern liberal democracies.38 The notion of persona as a legal concept must, then, be distinguished from the physical person him or herself; there is a décalage between the two, as indeed was evident in Roman law with its concept of slavery. Given that persona has an independence of its own, the question arises as to whether it is applicable to non-human entities. As we have seen (Chapter 3, section 4), Roman law recognised the universitas as a legal entity separate

D.1.5.7; Congenital Disabilities (Civil Liability) Act 1976. See eg Law Reform (Miscellaneous Provisions) Act 1934 s 1; Rochfeld (2011), at 32–3. 33 Rochfeld (2011), at 30–32; Airedale NHS Trust v Bland [1993] AC 789. 34 See eg Re Rowland [1963] Ch 1. 35 CC art 112. 36 CC art 122. 37 CC art 128. 38 Rochfeld (2011), at 13–14. 31 32

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from the human persons who made up the group,39 and the medieval jurists confirmed that such an entity was a persona. That said, the Romans never developed the commercial partnership into a legal person (Chapter 4, section 6); this institution remained firmly entrenched in the law of contract (societas) and was to act as a formidable obstacle to the development of legal personality in the ius commune. In terms of theory, legal personality was originally based on the idea of a persona ficta (Post-Glossators), but in the nineteenth century German theorists developed a realist approach whereby legal personality was based on the notion that groups within society had a real existence.40 The debate has not disappeared.41 One argument in favour of the reality thesis is that the group has its own particular interest (common or collective) and such an interest is a social reality.42 However, English law, which was slow at first to recognise legal personality but then quickly developed the commercial company in the nineteenth century via legislation, appears to favour the fiction theory.43 Whatever the situation at the level of theory, several characteristics are particularly important with respect to the development of legal personality. These are an independent patrimony, the ability to own and to contract, continual existence and limited liability. This said, in the common law systems the trust has assumed many of the roles played by the legal person in civilian systems. Does the law of trusts take anything from the law of persons (universitas personarum) or is it exclusively a creation of the law of things (universitas rerum)? Is it, in other words, a patrimony without a persona? Interestingly, the medieval jurists thought that the persona ficta was also a res incorporalis.44 Separating people from things was not always easy, and this remains the case. Can the notion of persona be extended to inanimate objects and to animals? Given the separation between this legal notion and human beings themselves, there is no reason, in theory, why, for example, animals, or some animals at least, should not be granted legal personality. It may be that even certain inanimate things such as a church could be endowed with personality. These animals and objects could not, of course, bring or defend claims themselves and would thus need to be represented; and of course there are other privileges that come with human personality that evidently could not be extended to animals and things. One thinks of the right to vote. Yet the same is true for some human beings, such as babies or people with mental incapacities. It is often argued that animals ought to have rights, and one way of doing this D.3.4.7.1. Jones (1940), at 72–6. 41 See Rochfeld (2011), at 79–85. 42 Ibid, at 82–83. 43 Tesco Supermarkets v Nattrass [1972] AC 153, at 170. 44 Jones (1940), at 167; and see eg Paulus de Castro, Comment on D.3.4.7 no 5. 39 40

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would be through the granting of personality. Yet, whatever the situation, it would appear that animals, even if they do not have rights, have – in English law at least – interests.45 One difficulty would be whether these new forms of personality could legitimately be classed under a law of persons. If animals were to have rights, what kind of right would this be? Would, for example, an animal have a right to privacy? In French law the law of persons itself endows individuals with certain rights, in particular privacy and dignity.46 These rights of personality are separate from the rights that are to be found in the law of things (property and obligations) in that, as their position in the Code civil indicates, they attach to humans as human beings. In theory they are non-patrimonial, or non-commercial, rights.47 These rights are often said to have developed quite late in French law, their rise being associated in part with the growing power of the press.48 However, the foundations go back much further. In Roman law dignity was protected in the law of obligations by the delict of injuria, which was an action arising out of insult.49 However, it was Doneau who asserted that there were certain rights (iura) that attached to the person as a person. When setting out a person’s rights, he wrote, one must first deal with those arising out of the status of the person himself (et statu personae quaeritur): life (vita); bodily integrity (corporis incolumitas); liberty (libertas); and reputation (existimatio).50 Today these rights are seen as human rights and are given expression not just in some written constitutions but also in the European Convention of Human Rights and Fundamental Freedoms, now incorporated directly into United Kingdom law.51 Rights such as the right to life, to liberty, to privacy and family life and to expression have been elevated, so to speak, from the law of persons to constitutional law, although the category of the ius personarum has since Roman times always had a distinct public law flavour. In English law there were no personality rights as such, that is, rights directly arising out of a law of persons. Such rights, if they existed, were protected largely by actions in torts such as trespass and defamation. However, the incorporation of the Convention into English law might be cause for a rethink, in that the Human Rights Act 1998 provides its own remedies for the violation of one of the rights.

Animals (Scientific Procedures) Act 1986 s 5C(3)(d). CC arts 9, 16. 47 In practice of course one can sell one’s privacy rights, say, to a magazine. 48 Lefebvre-Teillard (1996), at 48–9. 49 Zimmermann (1990), at 1950ff. 50 Doneau, Commentarii, Book I, Chapter I, § 3. 51 Human Rights Act 1998. 45 46

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Another aspect of the law of persons is the family, given its identification in the Convention. Former UK Prime Minister Margaret Thatcher once said that ‘is no such thing as society’; there ‘are individual men and women and there are families’.52 Whatever one’s political views, the statement is of importance, since it certainly reflects an ontological preoccupation of Western law. This said, the family, as such, has never been granted automatic legal personality – indeed, it has not been properly defined in legal terms53 – but it was and remains indirectly of fundamental importance in Roman and modern law. In Roman law the family was an institution attracting its own legal rules primarily for reasons of power (patria potestas) and of property.54 The family was a group of persons (plures personas) under the power of a single person, the paterfamilias.55 More important, perhaps, was the relationship that underpinned the notion, namely marriage and filiation. Marriage was described in one text as a partnership for life governed by divine and human law (divini et humani iuris communicatio).56 Yet even here it is difficult to describe marriage as a legal institution, given its lack of form.57 And so the more modern view of marriage and its legal forms and obligations stems primarily from Canon law.58 What, then, was, and is, the importance of the family? The answer is probably property and the notion, where it exists, of family property. Thus in Roman law marriage was closely associated with dowry; where there was no marriage there was no dowry.59 In modern law the French model has a notion of community property,60 whereas English law sees only two individuals governed by the ordinary law of property.61 That said, a spouse in English law may have a real right in the family home, just as a wife did in late Roman law with respect to her dowry;62 and there are in English law statutory rights of occupation.63 In addition, the law of remedies and the general private law might provide indirect protection of the family.64 The family can, therefore, be seen as a partnership group with important property implications, but this

Woman’s Own, 31 October 1987. Rochfeld (2011), at 110–12; Fitzpatrick v Sterling Housing Association Ltd [2000] 1 AC 27. 54 Lefebvre-Teillard (1996), at 98. 55 D.50.16.195.2. 56 D.23.2.1. 57 Jolowicz (1957), at 145. 58 Ibid, at 155. 59 D.23.3.3. 60 CC art 1400ff. 61 Van den Boogaard v Laumen [1997] 3 WLR 284, 292–3. 62 C.8.18.12. 63 See generally Family Law Act 1996. 64 See eg Barclays Bank v O’Brien [1994] 1 AC 180. 52 53

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is tempered by the philosophy of individualism which emphasises individual rights, even within the family.65

4.

LAW OF THINGS (IUS RERUM)

The second element in the Institutional scheme after persona is res. This latter term can loosely be translated as ‘thing’ – although the Latin word is rather amorphous – and represents another focal point around which legal propositions can be grouped. ‘Things’ (res) act to some extent as a counterpoint to ‘person’ (persona) and thus the law of things cannot be understood divorced from persons. Indeed, it has been said that in the Code civil persons are dealt with only from the angle of potential subjects of the law of property.66 The link with persons is particularly strong in civilian thinking since every person is seen as having a patrimonium, that is, a mass of things, tangible and intangible, that can be viewed as a legal entity in itself. The Romans themselves did not develop any kind of general theory with regard to patrimony, but they certainly established some of its foundational ideas which were to be built upon by the later civilians.67 In particular, they developed the idea of a mass of individual tangible and intangible things that could be viewed as a kind of ‘corporate’ whole.68 This idea of a universitas rerum is of particular importance in that, like the universitas personarum, it becomes a ‘thing’ in itself, that is, a res separate from the money and things that constitute its substance. Thus an actio in rem attaches to the universitas and not to any personal claims that might be included in its substance.69 Money and property may come and go, but the universitas remains the same. This is important because it establishes the idea of real subrogation. In the words of the medieval jurist Baldus, in petitione hereditatus res succedit loco precii, et precium loco rei (in an inheritance things take the place of value and value the place of things).70 The taxonomical issue attaching to things is how they are to be classified. What are the fundamental divisions? Here there is a difference between the Roman and common law models. In Roman law there were several important distinctions. According to Gaius, the principal distinctions are between those subject to divine law (divini iuris) and those subject to human law (humani iuris).71 Things under divine law include religious objects and the like plus Rochfeld (2011), at 112–13. Halpérin (1996), at 25. 67 Ourliac & De Malafosse (1971), at 60–8. 68 D.5.3.13.8; D.5.3.20.10; D.50.16.5pr; D.50.16.208. 69 D.5.3.25.18. 70 Baldus, Comment of D.5.3.22. 71 G.II.2. See also D.1.8.1. 65 66

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certain res sanctae such as walls and gates of a town, and can belong to no one;72 those under human law are subdivided into public and private.73 Public things cannot be part of a person’s property (in bonis esse) but are entrusted to the community (universitas); private things are the property of individuals (singulorum hominum sunt).74 The jurist Marcianus (early third century ad) added that Some things in natural law (naturali iure) are common to all men; some things belong to towns (universitates); some things to no one (nullius); but most things belong to individuals acquired on various different grounds. 1. And so by natural law things in common are: air, flowing water, and the sea together with the seashores […]75

And that ‘[n]o one therefore is prohibited from access to the beach for the purposes of fishing, providing that he abstains from intruding upon villas, buildings and monuments because, unlike the sea, they are not part of the law of the people (ius gentium) […]76 In addition to this classification founded upon the divine, natural and human law, Gaius, as we have seen (Chapter 3, section 4), divided things themselves into tangible things (res corporales) that can be touched (quae tangi possunt) and intangible things (res incorporales) which exist only in law (quae iure consistunt).77 Another distinction, to some extent associated with tangible and intangible things, was, and remains, the one between consumable and non-consumable items. Consumable property is of course tangible, but becomes generic when consumed and thus, if ‘loaned’ to another such property, immediately becomes owned by the ‘borrower’, who then, in Roman law, was under a contractual obligation in debt.78 Equally, if one contracts to supply consumable property, say a certain weight of potatoes, and the crop is ruined, the obligation remains valid since generic things cannot be destroyed (genus perire non potest).79 These latter distinctions are equally applicable to the common law and so, for example, a debt is a chose in action and thus both a contractual obligation and a form of personal property.80 Indeed, even a live performance by a musical

G.II.3–9. G.II.10. 74 G.II.11. 75 D.1.8.2pr. 76 D.1.8.2.1. 77 G.II.14. 78 D.12.1.2. 79 The actual expression is from Baldus, Comment on C.4.2.11 no 3. 80 See eg Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548. 72 73

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group has been deemed property.81 However, the principal distinction in English law is between land and personal (moveable) property. The distinction is fundamental because there are two quite different legal regimes governing the two kinds of res; land still involves feudal concepts and does not envisage legal relations in terms of a direct relation between person and thing.82 All interests in land are probably better seen as res incorporales. Personal property, or goods or chattels, are subject to a regime that, at least in terms of sale, is closer to the Roman model in that it employs the concept of the passing of ‘property’ in the goods,83 although there is no equivalent in English law of a rei vindicatio.84 However, one important difference is that ‘property’ (ownership) in goods is transferred by the contract, whereas this was not possible in Roman law; in Roman law there had to be a separate conveyance (traditio).85 Both real and personal property titles are largely protected by actions in the law of tort (trespass, conversion and nuisance),86 and this suggests that any strict division between property and obligations is untenable. As for any distinction between property that is common to everyone and property that is private and can be owned, there are problems when it comes to land in England. In a relatively recent case which considered, inter alia, whether or not the public had a right to go onto beaches, two Supreme Court judges noted that the ‘state of the law relating to public rights over the foreshore of England and Wales is more controversial than one might have expected’.87 The reason, once again, is a difference of model. In a feudal model the whole of a kingdom is in theory owned by the king and thus even beaches are technically in the patrimony of the Crown. The two judges thus analysed the beach issue in the following way: At least where there is no express permission from the owner of the foreshore, there are in principle at least three possible conclusions in relation to the issue of the public’s right to use the foreshore for bathing, by which we mean using the foreshore as access to the sea at low tide, or bathing in the sea over the foreshore at high tide (or a combination of the two), plus associated recreational activities. The first is Ex parte Island Records [1978] Ch 122. See generally Lawson & Rudden (2002). 83 Sale of Goods Act 1979 ss 16–18. 84 In other words there is no actio in rem. Instead there are actions for damages in tort; these were originally detinue, conversion (trover) and trespass, although detinue was abolished in 1977: see Torts (Interference with Goods) Act 1977. This 1977 Act gives power to a judge to restore the thing itself to the claimant. 85 D.44.7.3pr. As Baldus put it: Dominium non transfertur in contractibus, nisi per traditionem: Comment on C.4.6.3 no 3. 86 See eg Torts (Interference with Goods) Act 1977. 87 Lord Neuberger and Lord Hodge in R (Newhaven Port & Properties Ltd) v East Sussex CC [2015] UKSC 7, at para 28. 81 82

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that members of the public have, as a matter of general law and irrespective of the wishes of the owner of the foreshore, the right to use the foreshore for the purpose of bathing, as a matter of general common law. The second possibility is that the owner of the foreshore is presumed to permit members of the public to use of the foreshore for the purpose of bathing, unless and until the owner communicates a revocation of its implied permission. The third possibility is that members of the public have no right to use the foreshore for bathing, in which case they are trespassers.88

The logical answer would seem to be the second possibility, namely that there is an implied licence or permission for the public to access beaches. In the Roman model, in contrast, there is a ‘natural’ law right to use beaches since they are classified as a res extra commercium, that is, they cannot be privately owned. However, by public law the state has power over the whole kingdom (so to speak), and can thus can regulate situations regarding beaches or a beach. This certainly seems to be the position since Jean Domat, who wrote: 1. The skies, stars, light, air and sea are things that are so common to all in the society of men that no one can become their master nor deprive others of them. And also the nature and situation of all of these things are completely orientated to this common usage by everyone. 2. The rivers, river banks, beaches and main roads are public things and which are there for the use by individuals following the local law. And these kinds of things belong to no individual and are outside commerce [res extra commercium]. But it is the king who regulates their usage. [Footnote: litorum quoque usus publicus est].89

One interesting question is whether the state or the Crown can sell such common land into private ownership. Under the feudal model this would clearly be possible as the Crown owns the property. In the civilian model the position would appear much more difficult. No doubt a government could pass a public law permitting it to alienate such common land, but this would conflict with what many might consider to be a fundamental ‘natural law’ right which would, if nothing else, have a considerable political force. Returning to the more general level, the principal concepts to be found in the Roman model, such as ownership, possession and rights in another’s property, have already been discussed (Chapter 7). Some of these concepts made their way into the common law, but, as James Gordley has noted, when it came to property law ‘it would have been hard to make sense conceptually of the common law estates in land and future interests, the rule against perpetuities,

Ibid, at para 29. J Domat, Les loix civiles dans leur ordre naturel (2nd ed, 1695; Nouvelle édition 1735) (with references), Preliminary Book, Title III, Section I. 88 89

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or the distinctions among easements, covenants, and equitable servitudes’.90 This does not mean that civil and common lawyers cannot have a conversation about the law of property, especially if such a conversation is conducted from a functional viewpoint. But, as Michele Graziadei points out, terminology and taxonomy present something of a problem.91 As for the law of obligations, the historical foundations have been examined elsewhere (although contract will be considered in more depth later in this chapter).92 Perhaps the most striking feature of this history of the law of obligations is the way the civil law was received in the nineteenth century.93 One result is that fault has come to dominate non-contractual damages claims, which means that traffic accidents are dealt with by private law in a manner that is no different from Republican Roman law.94 English law has also turned to Roman law to solve its non-contractual debt (restitutionary) claims; the old Roman regula of unjust enrichment was officially adopted by the judges in the latter part of the last century.95 England may have exited the European Union, but it has partly embraced the Continent’s legal thinking.

5.

LAW OF ACTIONS (IUS ACTIONUM)

The third generic category in the Gaian scheme is the ius actionum. Modern lawyers rarely talk of a law of actions as such, but they draw a distinction between substantive law and procedure and between legal rights and legal remedies. In fact, by the time of Justinian’s Institutes, legal procedure had changed, making actions as an institutional artefact much less relevant. Certainly there was a considerable interrelationship between actions and procedure, but, as Jolowicz pointed out, although related to procedure, actions had never been equivalent to it.96 From a procedural point of view, a law of actions sees procedure attaching to different kinds or forms of actions themselves, whereas a general law of procedure attaches more to the litigation and court processes.97 As for actions, one of the similarities said to exist between Roman and English law is the historical foundation consisting of a series of forms of

90 Gordley (2013), at 205. For an excellent historical comparison between Roman property law and common law property law see Taitslin (2019). 91 Graziadei (2017). And see Taitslin (2019). 92 Samuel (2010); and see Ibbetson (1999). 93 Gordley (2013), at 204–12. 94 D.9.2.52.2; cf Mansfield v Weetabix Ltd [1998] 1 WLR 1263. 95 D.12.6.14; D.50.17.206; Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548. 96 Jolowicz (1957), at 76. 97 Given that procedure has been discussed, in a comparative context, in some detail elsewhere it will not be developed here: Samuel (2013), at 26–30.

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action.98 In English law these actions were the result of the early administrative writs required for entry into the royal courts; trespass, debt, detinue, trover, nuisance, habeas corpus, certiorari and others were the ‘instruments of attack’ and these were later supplemented by Chancery remedies such as account, injunction, rescission and rectification.99 The common law writs shaped English mentality in that each writ gave expression not only to its own particular procedural and remedial rules but equally to fundamental substantive ideas. Substantive law was ‘secreted in the interstices of procedure’.100 This system stands in rather stark contrast to developments on the Continent, where, even by late Roman times, actions had merged with obligations and the emphasis was more and more on the systematisation of iura themselves increasingly being viewed as ‘rights’ attaching to the individual (persona, individuum).101 Nevertheless this does not mean that the Roman forms of action have not left their mark on the codes. The law of contract remains divided into named and unnamed contracts, which is a hangover from the different species of contractual actions in Roman law. And, in addition, the ‘multiplicity of special proceedings deriving from the different legal transactions and situations of substantive law’ is ‘an unfortunate holdover from the old system of forms of action’.102 Such special proceedings (actions) include the difference between possessory and revindication claims, commercial and ordinary proceedings, marital disputes, minors and guardianship, and so on. Even more modern civilian thinking cannot always escape from distinctions between public and private actions, ordinary and summary proceedings or contentious and non-contentious jurisdiction.103 Actions may have given way to a law of subjective rights, but beneath these rights, and their remedies, are to be found the traces, if not structures, of older forms of claim. The English forms of action were finally abolished in substance, if not in actual form, in 1852 and replaced with a system of causes of action.104 This replacement system did not, however, represent a complete shift from actiones to iura. It was rather more complicated, for several reasons. First, the old actions were abolished only in procedural form; their substance survived to Zweigert & Kötz (1998), at 186–7. On the common law forms of action see First Report of Her Majesty’s Commissioners for Inquiring into the Process, Practice and System of Pleading in the Superior Courts of Common Law, PP, 1851, xxii 567, at 31. On remedies generally see Lawson (1980). 100 Maine (1890), at 389. 101 Baldus talked of obligations being the mother of actions: ius obligationis, quae est iuris, et quae est mater; et ius actionis, quae est filia: Comment on C.2.1.3 no 5. 102 Vescovi (1980), para 381. 103 Ibid, at paras 382–5. 104 Common Law Procedure Act 1852 s 3. 98 99

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act as the basis for a range of different torts and different remedies. And while ideas such as contract and negligence did manage to cut across the old system, they had to co-exist with older forms such as trespass, private nuisance and public nuisance.105 Even within contract debt survived as a separate cause of action vis-à-vis damages, and this difference of remedy can give rise to a difference of rights.106 Second, the idea of a cause of action masks an important distinction to be made between the idea of a ‘remedy’ in its strict sense – debt, damages, injunction, specific performance, rescission and so on – and an ‘action’ in its wider ‘cause’ sense. Trespass, nuisance, trover and breach of contract can all act as a ‘cause’ for a ‘damages’ or perhaps an ‘injunction’ action, but in doing so damages and injunction thus need to be distinguished from their causes. This goes far in reducing an old form of action such as trespass or trover (conversion) to a substantive idea which then becomes confused with the notion of a ‘right’. One arrives at the situation where ‘a man’s legal rights are in fact those which are protected by a cause of action’ since it ‘is not in accordance […] with the principles of English law to analyse rights as being something separate from the remedy given to the individual’.107 In fact, the cause of action does have to be distinguished from the remedy in the strict sense. But in cases involving, for example, injunctions, account, specific performance and even discovery this is not always clear, since the courts are able to bridge the cause–remedy divide by an appeal to various descriptive concepts such as an interest.108 Third, the action for ‘damages’ is itself an ambiguous remedial idea since it acts as a generic term for a range of different species of damages claims which themselves can act as differing ‘remedies’. Thus expectation damages must be distinguished from reliance damages and these two in turn must be differentiated from restitutionary damages.109 Moreover, damages in the tort of conversion could be described as having an in rem function inasmuch as, as awards, they represent the value of the goods misappropriated; in these circumstances damages appear more as a revindication action. Damages can also be awarded in equity in lieu of either an injunction or rescission of a contract for misrepresentation; these, again, are a different type of damages than those awarded

See eg Esso Petroleum Ltd v Southport Corp [1954] 2 QB 182 cf [1956] AC 218. Overstone Ltd v Shipway [1962] 1 WLR 117. 107 Browne–Wilkinson VC in Kingdom of Spain v Christie’s [1986] 1 WLR 1120, at 1129. 108 See eg Burris v Azadani [1995] 1 WLR 1372. 109 Surrey CC v Bredero Homes Ltd [1993] 1 WLR 1361, at 1369; Att–Gen v Blake [2001] 1 AC 268. 105 106

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at common law.110 In the law of persons, violation of a right protected by the European Convention of Human Rights can give rise to a claim for damages, but these damages must be differentiated from those awarded in tort.111

6.

PUBLIC LAW (IUS PUBLICUM)

The rights expressed in the European Convention raise issues about the scope and limits of private law, given that the Convention, however much it may impact upon private rights, is essentially a constitutional document. Where, then, is the boundary between public and private law to be found? Is, for example, the right to privacy a public or a private right? One historical difficulty here is that while the Romans have bequeathed via the Institutes an internally structured private law, they left no equivalent for the ius publicum. What they did provide, however, was, in addition to the foundational text, a number of ‘building blocks’ from which the jurists of the second life were able, gradually, to construct both a constitutional and an administrative law. Some of these blocks were, however, to be drawn from private rather than public law. The foundational text attributed to Ulpian asserts that the summa divisio is the distinction between public and private law: the former is concerned with the interests of the ‘state’ (quod ad statum rei Romanae spectat) and the latter with the interests of individuals (quod ad singulorum utilitatem).112 Despite the use of the word statum, it would be a mistake to think that the Romans had a notion of the state in any modern sense of the term; more important is the idea expressed in Ulpian’s statement of utilitas publica as contrasted with utilitas privata (sunt enim quaedam publice utilia, quaedam privatim).113 There are interests that attach to the community as a whole and there are interests that attach to individuals. Now, while this foundation seemed an excellent basis for constructing a public law, the actual history is much more complicated and perhaps controversial. For a start, there is very little in the Roman sources about the internal structure, scope and contents of the ius publicum and, indeed, Jolowicz argued that it was probable that ‘the distinction was not of any technical significance to Roman lawyers’.114 As for Jones, he suggested that a ‘citizen who entered into commercial dealings with public officials would find that his claims were subjected to the application of a broad admin-

Senior Courts Act 1981 s 50; Misrepresentation Act 1967 s 2(2). R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, at para 19. 112 D.1.1.1.2. 113 Ibid. 114 Jolowicz (1957), at 51. 110 111

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istrative discretion and not to the principles applied to transactions between individuals’.115 None of this is to say that there were no other texts in the Roman sources relevant to public law thinking. There are several of direct and immediate importance, some of which were subsequently to prove valuable in the hands of the medieval jurists. One of the most notable of the former is Ulpian’s text dealing with the legislative power of the emperor, which stated that what pleases the prince has force of law (Quod principi placuit, legis habet vigorem).116 This statement was of course important in itself, but perhaps of more subtle interest was what followed: the reason for this legislative power lay in the Lex Regia whereby the populus of Rome had transferred all their imperium and potestas to the prince.117 Moreover, not only was the emperor himself above the law (Princeps legibus solutus est)118 but, it would appear, his jurisdiction extended throughout the whole world (dominus mundi).119 As for the notion of imperium as a form of power (potestas), it was different from the power of ownership (dominium) in that it was a power of command associated with that of the sword (habere gladii potestatem) but extended to the government administration in general.120 It was also of two kinds, merum and mixtum. The first was a form of potestas whereby the holder had the power of command which could be used to punish criminals, whereas the second included not just a power to make legal orders, for example with regard to repossession, but also jurisdiction (jurisdictio), which endowed the holder to make administrative and legal decisions.121 One possible foundation to the public and private distinction might well have been, then, the distinction between imperium and dominium. In addition, with regard to texts of direct relevance to public law, there are those dealing with the fiscus (de iure fisci). This was the Roman treasury, which could participate as a legal subject in the domain of private law and thus could acquire, as a public entity, private ‘rights’ (in privati ius succedit)122 and could bring and defend legal actions. However, unlike private persons, as a public entity it had a number of privileges resulting from its public status.123 As for the texts of indirect importance, these become relevant with the rediscovery of Roman law in medieval Italy. As Bernardo Sordi points out, the

Jones (1940), at 142. D.1.4.1pr. 117 Ibid. 118 D.1.3.31. 119 D.14.2.9. 120 D.2.1.3. 121 D.2.1.1–D.2.1.4. 122 D.49.14.6pr. 123 Mestre (1985), at 106–8. 115 116

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Glossators and Post-Glossators cannot have been unaware of Ulpian’s distinction but, given their view of the (Roman) law as a single harmonious whole, they found it at best puzzling.124 Baldus, for example, said there could be no public good without private good and no private good without public good (Cum ergo bonum publicam no fit sine private, nec privum sine publico).125 However, despite seeing the law as one and indivisible (publicum et privatum non sunt species iuris),126 the Post-Glossators in particular succeeded in fashioning out of the Roman texts the building blocks for a European political theory. They did this not out of idle speculation, but because there were in that medieval period very real practical issues and conflicts surrounding the power of the Pope and princes – conflicts in which the absolute authority of Roman law had a central ideological role. As Walter Ullmann has explained, the ‘significance of Justinian’s codification can hardly be exaggerated’ and this significance ‘lies perhaps less in the purely legal contents than in the ideology and the Roman culture it conveyed’.127 And he continued: ‘The general principles relating to justice, to the concept of law, the division of law, its enforcement, and so on, became central to the medieval conception of law; whilst the Code (and the Novellae) set forth an unadulterated monarchic form of government in the guise of law.’128 This ideological point must not be underestimated, because the actual political and social model within which the Italian jurists were operating was a feudal one. This was a model that was not just different to the Roman one – especially in the way that dominium and imperium were not separate forms of power – but was almost opposed structurally and ideologically to the model found in the Corpus Iuris.129 In addition, political thinking was weighed down with ‘theocratic and theological encrustations’130 since the ‘development of governmental thought in the Middle Ages was largely conditioned by the predominance of the priestly element’, for ‘they had the equipment, the literature, the sources at their disposal’.131 Roman law offered an escape from all of this, and ‘by the end of the twelfth century most of Western Europe was in the grip of Roman principles of government supplied as they were by the law of the Romans’.132

Sordi (2018), at 706–7. Baldus, Comment on D.1.1 Additio No 8. 126 Sordi (2018), at 707. The quote is from the Glossator Azo. 127 Ullmann (1975a), at 47. 128 Ibid. 129 Cf Jones (1940), at 143–5. 130 Ullmann (1975), at 78. 131 Ullmann (1975a), at 91. 132 Ullmann (1975), at 78. 124 125

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What, then, were the texts and principles that were relevant? The ones of direct relevance, as we have just seen, were those describing the Lex Regia, imperium and jurisdictio. One should mention also the importance of expressions such as utilitas publica which became the justification for a political and administrative auctoritas.133 The indirect ones were texts dealing with institutions that were also to become central to political thinking, of which the most relevant was the universitas (corporation) (see Chapter 3, section 4). The importance of this institution in medieval (and later) political thought must never be underestimated, because it became the conceptual body within which a political community – a populus – could legally be envisaged. As Joseph Canning has pointed out, the Glossators had on the whole identified the corporation with its members: Universitas nil aliud est nisi homines qui ibi sunt (a corporation is nothing but the men who make it up), said Accursius.134 But the Post-Glossators ‘saw these human components not as mere isolated individuals (singuli), but as corporate men (universi), that is, men seen specifically as united in a corporate whole’.135 The canon lawyers equally employed the universitas as a way of explaining the collegial structure of the church;136 it was a persona ficta, an expression also used by some of the Post-Glossators.137 Having established this universitas-populus structure (and an analogous one for the church and its faithful), other texts from the Corpus Iuris were deployed in order to work out its internal governance. One of the most important, and in some ways one of the most extraordinary given its actual source, was the expression Quod omnes tangit ab omnibus approbetur (what touches all must be approved by all).138 As Tierney explains, ‘Quod omnes tangit is a genuine phrase of classical Roman law but in its original context in the Code it had no constitutional significance and was not even applied to corporations; it was a mere technicality of the private law of co–tutorship’.139 However, in the hands of the canonists it became a fundamental regula iuris.140 Moreover, the idea of tutorship itself – again part of Roman private law – became a model for the relation between a ruler and his people.141 But how might this approval be expressed? Again, Roman law appeared to provide an answer: a corporation

Mestre (1985), at 98–103. Gloss on D.3.4.7. 135 Canning (1987), at 186–7. 136 Tierney (1982), at 19–28. 137 See eg Paulus de Castro, Comment on D.5.1.76 no 6. Such a persona ficta was also a res incorporalis: see Comment on D.3.4.7 no 5. 138 C.5.59.5. 139 Tierney (1982), at 24. 140 Liber Sextus Decretalium (1298), last title of book V: de regulae iuris, regula 29. 141 Ullmann (1975), at 58. 133 134

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was to be represented by a named individual (actor) who would represent not the individuals (non pro singulus) who made up the universitas but the corporation itself (pro re publica vel universitate).142 In addition, Roman law also said that a majority decision was to be treated as a decision by all (Refertur ad universos, quod publice fit per maiorem partem).143 One can see here the foundations of not just the modern corporation, but also the modern state. Indeed, the notion of a universitas, according to Gaius, was modelled on the res publica (ad exemplum rei publicae).144 As Joseph Canning concluded in his assessment of the Post-Glossator Baldus’ contribution to political thought, his ‘unique contribution to political thought is to combine a fully articulated juristic corporational view with an ultimately Aristotelian conception of the state as a congregation of natural political men’.145 Bartolus (1313–57), his teacher, had already endowed such a corporation with what Walter Ullmann called an ascending theme of power. Turning the Lex Regia on its head, he concluded that the civitas sibi princeps est, that is to say that the city itself (with its populus) was the prince.146 It had its own merum imperium.147

7.

CONTRACT (CONTRACTUS) (1): IUS PUBLICUM AND POLITICAL THEORY

With the end of the Middle Ages, the next Roman building ‘block’ to be incorporated into public law thinking and political theory was the idea of contract (contractus, pactum) based on agreement (conventio) and consent (consensus). Hints of this idea of consent are of course to be found in the Lex Regia, although the Roman sources themselves never linked – and, given the Roman ‘theory’ of contracts, could never have linked – the two notions. And contract had been recognised by the Post-Glossators as the basis of the feudal relationship. Nevertheless, this feudal contract was seen as something separate from the lex Regia.148 It was Thomas Hobbes (1588–1679) who brought the two institutions together. That Hobbes was building upon the work of the Post-Glossators is particularly evident in his Latin version of Leviathan published in 1668. It employs the language of Roman law and thus is full of terms developed D.3.4.2. D.50.17.160.1. 144 D.3.4.1.1. 145 Canning (1987), at 208. 146 Bartolus, Comment on D.4.4.3 and D.49.1.1. 147 Bartolus Comment on D.48.1.7. 148 Canning (1987), at 82–6. 142 143

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by the medieval jurists, such as ius, civitas, persona, actor, pactum, imperium, potestas, singuli and so on. Hobbes saw the civitas as a single person (Civitas Persona una est), wherein a large number of men had come together and, through a mutual contract (Pacta mutua), had transferred their power to a supreme ruler (quando homines sponte summam Potestatem in unum hominem vel coetum) in the hope of protection.149 This pact could not be revoked (tolli non potest) because the supreme ruler had become the actor who assumed the personality of the whole city (Actor facit ille, ut Author facit Civitas). Who then could become the accuser? Who would judge any breach of the contract? As for the law that governs within the civitas, it consists of commands (Lex Imperatum est) and the interpretation of the laws of nature is not for the doctors or moral philosophers (Legum Naturae Interpretatio non a Doctoribus) but for the authority of the civitas, because it is authority, not truth, which makes law (Authoritas, non Veritas facit Legem).150 Correct interpretation is for the person who has supreme power (qui Summam habet potestatem), or a person delegated to exercise it, and it is authentic because it is the interpretation of the civitas (quia Civitatis Sententia est). Hobbes subsequently goes on to classify the various types of laws as set out in Justinian’s Institutes, but then adds other classifications. There is the distinction between natural and positive (Naturales et Positivas), between fundamental and non-fundamental laws (breach of a fundamental law leading to the destruction of the city itself: Civitas nulla est) and between lex and ius (Legem Civilem, et Ius Civile).151 Hobbes, then, was not just reconciling, to use the language of Walter Ullmann, a descending thesis of power with an ascending one (via contract), but seemingly introducing, or re-introducing, a vocabulary (authority, positum, fundamental and lex in relation to ius) that was in part to shape the future of legal thought. This importation of contract into the domain of the ius publicum and political theory needs to be appreciated within a wider epistemological context. What is the justification for the authority of law? In the Middle Ages the response to this question seemed evident. The texts of Roman law were in themselves authoritative because, as we have seen (Chapter 5, sections 1 and 2), ancient texts, particularly if they could be linked to divine authority, were enough in themselves to settle the question. In addition, it seemed self-evident that where there was society there had to be law; ubi societas ibi ius, said a seventeenth-century commentator.152 By the end of the Middle Ages this Hobbes, Leviathan, at Chapter 17. Ibid, at chapter 26. 151 Ibid. 152 Henrici de Cocceji, Commentary on H Grotius, De Jure Belli et Pacis, Prolegomena, § VIII. 149 150

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epistemological outlook had been undermined by nominalism, associated with philosophers such as William of Ockham (1285–1347). In order to appreciate this debate, one must return to the concept of the corporation. Does such an entity actually exist as a thing in itself (res) or is it only the people (individuum, singuli) who make up the body who exist? Or, to give another example, do forests exist or are there only trees? The nominalists would have argued that, in relation to these two examples, only people and trees exist, the corporation and the forest being just names (nomina). ‘One can see the consequences of such a position in the political arena’, writes one French political philosopher; ‘human societies have no reality beyond the individuals which make them up’.153 The result was that the old epistemological foundation collapsed and a new one was needed. Again, Roman law appeared to provide, if not the answer, then a category and a concept in which a new epistemological vision might be forged. The category was the ius naturale (together with the ius gentium), which offered both a state of nature space and, for a jurist such as Grotius (Hugo de Groot) (Chapter 5, section 6), a transcultural set of natural principles that were valid and applicable to all human societies. As for the concept, this was of course contract. Indeed, for Grotius, the two came together in that it was a principle of natural law that agreements must be kept – pacta sunt servanda (a principle developed in particular by the canon lawyers out of the Roman sources).154 And thus it became possible to envisage contractual obligations based on agreement (conventio) and consent (consensus) even in a state of nature environment. ‘So’, wrote Jolowicz, ‘if consent is the ‘mother’ both of civil law and ius gentium, the grandmother of both is natural law, and Grotius can trace the genealogy even further back for the great-grandmother is human nature itself’.155

8.

CONTRACT (2): IUS PRIVATUM

As for contract itself, a general theory based upon agreement and consent was difficult to achieve during the medieval period because of the assertion in the Digest that nuda pactio obligationem non parit (a bare pact gives rise to no obligation).156 The Post-Glossators tried hard to evade this assertion with their theory of ‘clothed pacts’ (pacta vestita) and Baldus stated that agreement is a general name given to all contracts (conventio est nomen generale ad omnem Quillet (2003), at 504. See eg D.2.14.7.7 (servabo), D.16.3.24 (lex contractus servabitur) and Baldus, Comment on D.2.14.1 no 1 (pacta sunt servanda). See generally Zimmermann (1996), at 537–45, 576–7. 155 Jolowicz (1963), at 96. 156 D.2.14.7.4. 153 154

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contractum).157 He noted also Ulpian’s ambiguous statement that a contract arising out of agreement is accepted as lex (contractus ex conventione legem accipiunt).158 Moreover, canon lawyers regarded any breach of a promise as sinful, and thus, said Decius, ex pacto nudo, de iure canonico oritur actio.159 However, the expression ex pacto non oritur actio is endlessly repeated by the medieval Roman jurists. With the shift of emphasis in the seventeenth century onto the ius naturale and the ius gentium, the way was open for more generalised ideas based upon natural reason. The French jurist Jean Domat (1625–96) thus set out to re-present Roman law in clear and easily understandable principles (cf Chapter 5, section 5). He began by stating in his Loix civiles his view of the Roman law of contract: I.

This word agreement is a general name which includes every kind of contract, treaty and pact of any nature (cf D.2.14.1.3). II. An agreement is the consent of two or several people (cf D.2.14.1.2) to form between them some engagement (cf D.2.14.1.3) or to end a previous one or to change such a previous one (cf D.50.17.35) […] VII. Of these different kinds of agreement, some are of usage so frequent and so well known by everyone that they have their own name, such as sale, hire, loan, deposit, partnership and others (cf D.2.14.1.4); and there are some which do not have their own name, such as when a person gives to someone a thing to sell at a certain price on condition that he will keep for himself what more he can get for it (cf D.19.5.4; D.19.5.13pr). But all agreements, whether they have a name or not, have always their effect and they enforce what has been agreed (cf D.2.14.1pr). VIII. Agreements are formed by the mutual consent given and finalised reciprocally (cf D.44.7.2.1; D.44.7.52.9). Thus sale is accomplished solely by consent, even although the goods have not been delivered nor the price paid […]160

However he then went on to state: VII.

Agreements once formed, everything that has been agreed has the force of enacted law (tient lieu de loi) between those who have made them (D.16.3.1.6: contractus legem ex conventione accipiunt; D.2.14.1.3: quid tam congruum fidei); and they can be revoked only by common consent (cf D.50.17.35) or by other ways which will be explained in Section VI […]161

Baldus, Comment on D.2.14.1. Baldus, Comment on D.13.6.5 no 1. 159 Decius, Comment on C.2.3.10 no 11. And see Rampelberg (2005), at 67. 160 J Domat, Les loix civiles dans leur ordre naturel (1756 edition), at First Book, First Part, Book I, Title I, Section I. 161 Ibid, at First Book, First Part, Book I, Title I, Section II. 157 158

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One might note that in asserting this thesis that contract is private legislation, Domat believed he was stating an actual principle of Roman law. However, the use of the word lex by Ulpian probably did not mean legislation, as the word had a wider meaning as well; it could have meant ‘contractual affair’ or ‘contractual situation’. In fact, it is most unlikely that a Roman jurist would ever have conceived of contract as a form of private legislation, as they never seemed interested in formulating a general theory of contract. There is a general definition of an obligation as something that binds two persons as a legal chain (iuris vinculum),162 and so it may be that Ulpian had this kind of image in mind. Whatever the situation in Roman law, the Domat interpretation of Ulpian’s statement is repeated by Robert Pothier (1699–1772) (Chapter 5, section 6) in his Pandectae Justinianeae, in novum ordinem Digestae; agreements give force of legislation (force de loi) to contracts.163 And this assertion finally ended up in the Code civil of 1804.164 Whether this general theory development seriously affected contractual thinking in the civil law is another matter, because the codes all contain sections on the specific contracts of Roman law. Pothier stated that agreements that give rise to actions were no longer agreements but contracts, and that for an agreement to be enforceable it needed a cause (causa). The pact, he said, had no cause, and thus such an agreement could not produce an obligation.165 As a French legal historian points out (comparing the civil law with the common law): The difference [between common law and civil law contractual thinking] consists in the fact that the civil law systems construct contractual law from the starting point of the classes of ‘named’ contracts, the ‘innominate’ contract playing only a marginal role. So marginal that when a new innominate engagement starts to acquire a certain practical importance, doctrine and case law are immediately employed to give it a precise legal regime of its own, transferring it into a type of engagement like the named contracts, even if it does not end up as one provided for in legislation.166

And he continues: As a result, civilian jurists practically never work at the general level of contract; in particular, they never concern themselves with wanting to know if a new agreement can or cannot be considered as a contract. Indeed, when faced with a new legal type, J.3.13pr. RJ Pothier, Pandectae Justinianeae, in novum ordinem Digestae (1748–1752), De regulis iuris, rule 978. 164 CC art 1134 (now art 1103). 165 Pothier, Pandectae Justinianeae, in novum ordinem Digestae, De regulis iuris, rule 977. 166 Rampelberg (2005), at 35. 162 163

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they recognise it either as a combination of existing legal types or as the adoption of some foreign accord.167

In fact, Professor Rempelberg hints that this contemporary approach might even be more rigid than Ulpian’s.168 He rightly points out that the word causa meant many different things in Roman law. For example, as was seen earlier in the text concerning the wagons, it could mean the facts or circumstances of the case (Chapter 3, section 5).169 When Ulpian employed the word in respect of named contracts he appeared to later jurists to be saying that any engagement that did not fall within one of these categories gave rise to no obligation.170 Yet such an all-or-nothing situation was not the case, because even in an innominate contract there might still be causa (Sed cum nulla subset causa). If the situation was covered by a named contract, then there clearly was an obligation and an actio; but if it did not fall into one of the categories the notion of cause was not a question of looking at what was at the basis of any promise or agreement. It was a matter of examining the structure of the affair itself (negotium). ‘Causa is not, then, here an element of formation’, writes Professor Rempelberg, ‘but an objective situation, a legally valuable engagement that the law directly recognises in granting an action’.171 It was Domat who misinterpreted causa as a matter of substance.172 Perhaps, argues the professor, the English doctrine of consideration is closer to the original Roman idea of causa than was the Post-Renaissance civilian understanding.173 Rempelberg makes this comment in the context of his assertion that the common law ‘does not know of types of contractual agreement’.174 Certainly textbooks on English contract law do not start out with a chapter on classification of contracts,175 but as Tony Weir pointed out, such ‘abstraction is distractingly unrealistic’.176 For ‘the lawyer in practice knows that it really does matter what the transaction is, because different rules do apply to different transactions’.177 Failing to understand different types of contractual transaction can, argued Weir, lead to an exaggerated emphasis on English law’s general theory of contract, a theory which explains everything about contract except Ibid. Ibid, at 84–6. 169 D.9.2.52.2. 170 D.2.14.7.4. 171 Rampelberg (2005), at 86. 172 Ibid, at 89. 173 And see Gordley (2013), at 210–12. 174 Rampelberg (2005), at 35. 175 See Samuel (2011). 176 Weir (1992), at 1639. 177 Ibid, at 1640. 167 168

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the situations that do not fit within it.178 If one examines the law reports of the twentieth century, most contract cases did not fall under the heading ‘contract’; they are to be found under such headings as ‘shipping’, ‘insurance’, ‘sale of goods’, ‘hire-purchase’, and so on. This is not to say that English contract law is just like French or German contract law; the histories are very different. And there is the odd case where general theory is used to impose a liability.179 But it is probably useful to remember that buying an onion is a rather different transaction than hiring a ship – a point that the Roman jurists seemed to have appreciated.

9.

CONCLUDING REMARK

No doubt other categories and notions within the history of taxonomical thought in law deserve discussion, but the principal ones discussed in this chapter ought to give an adequate insight into their theory-building possibilities, helped of course by terminology (Chapter 7). Two important points need to be made about this taxonomical history. The first is the very detailed internal structure bequeathed by the Institutes of Gaius (via the Institutes of Justinian); it is both simple in its institutional form of persons, things and actions and highly complex in the substance of each detailed category and sub-category. Methodologically divisio is one of the key characteristics of this complexity, but the notions of persona, res and actio act together as a passerelle between this complexity and the world of social fact since the three notions exist in the two worlds of law and fact. The second principal point concerns public law. Unlike private law, the Romans did not bequeath a ready-made internal structure, but they did provide some fundamental constitutional notions, together with a range of other assertions and concepts from private law, which were to prove more than adequate foundations for a theory of public law. Moreover, in constructing such a theory of public law over the centuries, the jurists were in fact equally building a theory of law itself (however adequate or inadequate). And the importance of these theories, or some of them, is that they seemingly permitted law as a body of knowledge to transcend its own history.

Ibid, at 1646–7. See eg Blackpool & Fylde Aero Club Ltd v Blackpool BC [1990] 1 WLR 1195.

178 179

9. Private law theory and the resurgence of formalism In Chapter 6 it was suggested that in the past 50 years or so there has been a move away, at least to some extent, from the Roman-inspired conceptual foundations of legal thought. The functional and cultural turns raised questions about formalism in legal thought and about the social and cultural inadequacies of traditional legal theory. However, this present century is witnessing, at least in the common law world, a resurgence of formalism – a neo-formalist turn – by a group of private lawyers who are sceptical about policy and functional reasoning by the judiciary. One is witnessing, in other words, a reaction to American Realism and to the law and economics school. Might this be something of a ‘counter revolution’, so to speak? This present chapter will critically examine the latest manifestation of this neo-formalism. In doing this, the chapter will look once again at the history of the Corpus Iuris in Europe, but in a way that emphasises formalism as a notion.

1.

INTRODUCTION: NEO-FORMALISM

What is neo-formalism? To pose this question is of course to pose questions about what is meant by formalism, and this is neither easy nor beyond controversy. The historical roots of legal formalism itself have of course been the subject of earlier chapters in this present work on historical jurisprudence, but, at the price of repetition, it might be worth revisiting this history in order to view it uniquely through the prism of formalism in legal thought. Having done this, one will be in a position better to assess the conceptual foundation of neo-formalism and to pose questions about its intellectual foundation. Is it something of a theory ‘counter revolution’ or is neo-formalism little more than a form of nostalgia (things were better in the past) or unconscious pastiche (imitation or, worse, empty harking back to obsolete models)? Moreover does this neo-formalist turn indicate the existence of some kind of transcendental reality? Or is there just a group of professionals and scholars who act ‘as if’ there is such a reality? A collection of essays published in 2019 on the common law of obligations (edited by Andrew Robertson and James Goudkamp), many of which are devoted to quite detailed analysis of actual cases, may not at first sight 223

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seem like a work of particular interest to legal historians and legal theorists.1 However, the topic of form and substance in law and legal reasoning, which is the unifying theme of the collection,2 has the capacity to raise such a work from one of positive law to one of epistemological importance – for the theme is part of a central tension underpinning legal knowledge, namely that between formalism and realism (employing this latter term in a very general sense).3 Yet, what is legal formalism according to the authors in this collection? Interestingly, the index contains no entry for ‘form’ or ‘formalism’ and thus no sub-entry for ‘definition of’. In some respects this absence may be the result of poor indexing – always to be regretted4 – since many of the contributors try, to a greater or lesser extent, to distinguish between formal and substantial reasoning. However, as Professor Barker (who provides a concluding chapter) implies, a single definition may not be possible and so ‘we must articulate very precisely what we mean by it and be alert to the great variety of different views that potentially underpin it’.5 In fact Barker has some difficulty, as he admits, in doing this, for he writes that after reaching thirteen he stopped counting the different ways in which the various authors in the book identified the distinction between formalism and substantivism.6 Nevertheless, the thirteen that he does identify are worth repeating, since they throw some light on the whole issue of formalism. With regard to ‘form’ and ‘substance’, says Barker, the authors referred: to distinctions between (i) legal rules or text (form) and their reasons, merits or justifications (substance); (ii) the law’s institutional structure (for example, the bi-partite nature of private litigation) and its rules or purposes; (iii) the ‘name’ or ‘label’ attached to a legal concept and its contents; (iv) the law’s ‘appearance’ and its ‘reality’ or ‘truth’; (v) the law’s procedures (for example, the old forms of action) and its primary or secondary norms; and (vi) the law’s ‘method’ and its ‘results’ (or, analogously, its ‘rules’ and its ‘effects in practice’).7

As for the use of form and substance in an adjectival sense, Barker notes that they are used to describe approaches to legal reasoning to distinguish between: (vii) ‘open’ (formal) and ‘closed’ (hidden, substantive) reasoning; (viii) reasoning that is highly constrained (automatic, dictated by authority, text, lexical priority, or categorisation) and that which is less constrained (flexible, discretionary, multi 3 4 5 6 7 1 2

Robertson & Goudkamp (2019). With specific reference to Atiyah & Summers (1987). Samuel (2019a). Samuel (2011). Barker (2019), at 433. Ibid, at 434. Ibid (footnotes omitted).

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factorial, responsive to context, able to span different organisational frameworks); (ix) reasoning that is ‘internal’ or ‘intrinsic’ to legal rules (formal) and that which is ‘external’ or ‘extrinsic’ to them (substantive, instrumental, social, moral); (x) reasoning that is logical, mechanical or syllogistic and reasoning based on values, interests, or purposes; (xi) reasoning that is abstract and general (as found in a civilian code) and that which is fact-specific and particular; (xii) reasoning that places priority upon certainty and that which favours ‘justice on the case’; and (xiii) reasoning that is technical, subsidiary or trivial and reasoning that is of great, or even conclusive normative importance.

The enumeration of these different meanings is certainly helpful in that not only do they contain some terms that are rich in their epistemological implications, but they also provide a useful starting point for an investigation of the links between substantive legal knowledge – or perhaps one should say knowledges – and the methods associated with these knowledges. This said, this knowledge, or these knowledges, can prove elusive, because access to them depends both upon how the knowledge is represented and upon the relationship between the representations and the substantive knowledge itself. Indeed, one question that needs serious consideration – and one that is perhaps not investigated in the edited collection referred to – is the extent to which there is any ‘substantive’ knowledge beyond the model representing it.8 Knowledge representation is, accordingly, one useful synchronic approach to the problem of form and substance.9 However, another starting point for an understanding of legal formalism is the history of legal thought – historical jurisprudence – in the West. Formalism could be said to have featured highly in this context. Moreover, such a diachronic perspective is one that is of particular relevance to the comparatist in that no work by common lawyers on legal formalism, even by lawyers who would not claim to be comparatists, can escape the contribution of the civil lawyers. This is not to deny Barker’s perfectly valid observation about the variety of meanings; indeed, the civilian scholarship will confirm that the term can stand for a range of things.10 But, as both James Gordley and previous chapters in this present work show, there was, it might be argued, a particular formalist project that developed over the centuries and which was largely attached to the scholarship of Roman law.11 This project is reflected, if at all, in only one chapter in the 2019 collection,

On which see Mathieu (2014). Knowledge representation covers a range of issues, from what might be termed the ontological foundations of law – does legal knowledge consist of rules, remedies, rights or whatever? – to the images and metaphors used to present law: maps, pyramids, hierarchies and so on. 10 See eg Champeil-Desplats (2016). 11 Gordley (2013). 8 9

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namely the chapter by Professor Dan Priel.12 As we shall see, this author proposes two kinds of formalism to be found in legal thought. In fairness to the contributors, the 2019 collection is not really designed as some abstract work on legal philosophy or legal epistemology and its comparative and historical orientations are largely limited to examples from common law jurisdictions. It is a contribution to the law of obligations in all its specific details.13 Yet several of these contributors feel motivated to assert that the courts, or at least the United Kingdom Supreme Court, have (has) drifted too far from a formalist view of the law of tort, contract, restitution or whatever, and that what is needed is a reassessment of their approach and reasoning techniques. As Professor Barker notes, there has been the rise of a ‘new formalism’.14 Now, if one returns to the theme of a juristic project stretching from Roman law itself right up to the previous century and considers this project in the context of an epistemological framework articulated by a philosopher of science, the new formalism is perhaps understandable. Robert Blanché once noted that the sciences all pass through four stages, beginning with the descriptive and ending at the axiomatic, having gone through an inductive and deductive stage on the journey.15 This model seems to be applicable to law, as has been noted elsewhere.16 But with the debunking of this axiomatic legal science, associated with German Pandecticism, by some American Realists – ‘transcendental nonsense’, said Felix Cohen (as we have seen: Chapter 5, section 10; Chapter 6, section 1)17 – law found itself in a post-axiomatic stage of epistemological confusion. Ubinam Gentium Sumus?18 Where do we go from here, asks James Gordley. As Steve Hedley has pointed out: back to the past, it would seem.19 It might, then, be useful first to return to this past.

Priel (2019). Thus many of the observations and criticisms to be made about the Robertson & Godkamp book in this chapter do not, in fairness, apply to all of the contributors, some of whom have simply written doctrinal chapters on specific aspects of tort, equity or restitution law and do not seem to be advocating a hard or fundamentalist neo-formalist thesis as such. 14 Barker (2019), at 436–40. 15 Blanché (1983), at 65. 16 See Samuel (2016), at 148–51. 17 Cohen (1935). The debunking in fact started within Germany itself: see Haferkamp (2018). 18 Gordley (2013), at 309–12. 19 Hedley (2009), at 199. 12 13

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227

FORMALISM: HISTORICAL CONSIDERATIONS

‘From antiquity’, writes a French jurist, ‘form serves as the framework of the law’.20 Or, as Henry Maine put it, ‘substantive law has at first the look of being gradually secreted in the interstices of procedure; and the early lawyer can only see the law through the development of its technical forms’.21 Originally forma applied to early formal legal documents, but it later developed into a wider formalism which came to be part and parcel of the law itself. Contracts, for example, did not arise from agreement as such but on types, and one type, the stipulation, could only come into existence with the use of formal words.22 Other transactions, unless they fell into one of the named forms, would give rise to no obligation (cf Chapter 8, section 8).23 As for procedure itself, those who sought a legal remedy had first to go to a Roman magistrate, who would grant such a remedy only on the basis of pre-existing formal types of action.24 It was a system of legal formulae. Over time these forms became less and less strict,25 but, like the smile of the Cheshire cat,26 they never disappeared; they survived by becoming both more abstract and more integrated into the substance of the law itself. And so what started out as different types of actio subsequently, particularly after changes in procedure, became different types of ius (Chapter 7, section 4).27 Once these forms became absorbed into what might be said to be the law itself – that is, from actio to ius – the nature of formalism changed. Formalism became part of law’s ratio, that is, part of its knowledge (scientia) and its rationality. Thus formalism in the sense of abstract forms did not disappear with developments in the meaning of forma since the old forms had created a terminology that itself was both rich and capable of development. As Aldo Schiavone notes: In the Iuris civilis books, the development of legal formalism had led to the creation of an entirely new linguistic order, heralding the formation of a stylistic and scientific canon. The words and the constructions of the ius were thus transformed into concepts integrated into complex and rigorously deductive argumentative structures

Andrieux (2003), at 748. Maine (1890). 22 G.III.92. 23 D.2.14.7.4. 24 Andrieux (2003) at 748. 25 See G.IV.30. 26 See L Carroll (1865), Alice’s Adventures in Wonderland (Macmillan ed). 27 D.44.7.51, to be found also in J.4.6pr. 20 21

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(trame), the starting point for the order of the (legal) discourse being constructed into a (formal) order of the city and into a map of social life.28

However, as Schiavone goes on to explain, the ancient basis of Roman law was not completely abandoned and thus the casuistic dimension to legal knowledge remained a key feature of the Roman juristic mentality (see Chapters 3–4). The jurists (or many of them) steadfastly refused to submit both to the kind of ‘scientific’ rationalisation (in artem redactum) that had been advocated by Cicero (106–43 bc) (Chapter 3, section 3; Chapter 5, section 5) and to the idea that legislation (lex) represented the paradigm type of legal knowledge.29 The jurists, in other words, refused to accept that law was a matter of general rules (regulae iuris) which had universal application; the law was actually to be found in the examination of each factual case.30 Consequently, with the exception of some teaching manuals (institutiones), the jurists were little interested in rearranging the actiones and the iura along systematised and hierarchical genus and species lines. And this is why the Digest has no apparent order and in substance consists of a large number of factual examples. Nevertheless, just because formalism did not move to an even more abstract, or systems (ars), level, this does not mean that formalism was not fundamental even within a legal tradition that appeared to operate at the level of fact. The concepts and notions became incorporated within the facts themselves and acted as the ontological foundation for juristic reasoning about these facts (see Chapter 3). Sometimes this is obvious. For example, in one responsum the jurist deals with the case of a man who had two properties and sold one of them while retaining the use of a specific measured space around the source of water on the sold land.31 The legal question was this: did the seller retain ownership (dominium) of the space or had the seller only a ius, that is, a ‘right of way’ (to use a modern expression)? The answer given was that he had only a ius. The two concepts in play, namely dominium and ius in re (right in another’s property), are evident and the whole analysis depends on the dichotomy between the two. In many of the problems involving, say, contracts of one sort or another the legal concept is obviously evident, but often other formal concepts may be operating within the facts as well. Fault and risk, for instance, may play a vital role in the case of things hired or lent;32 and property relations

Schiavone (2017), at 241. Ibid at 241–2. 30 Ibid. 31 D.8.3.30. 32 See eg D.13.6.5; D.13.6.18pr. 28 29

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such as possession can be relevant in facts that are not directly concerned with a law of property problem.33 Again, Schiavone describes this formalism well in saying that the concepts make law a metaphysical entity, but one which is ‘a true ontology’ acting within concrete facts in such a way as to be the motor for all legal (ius) development. In other words, these forms of law, having become so familiar through long usage, move from their legal context into a factual one. Yesterday’s forms become today’s realities.34 This ‘ontologisation’ of concepts has the result of merging form with function and so, for example, sale and hire become factual realities with specific functions attached to them. Accordingly, sale, hire and the like appear as empirical transactions themselves acting as the source of iura; they become the causae that underpinned the contractual remedies. The forms get lost in the substance, so to speak. The medieval jurists, as we have seen, were to create a phrase that represented this process, namely ex facto ius oritur (law arises out of fact). Perhaps one might describe this formalism as an internal constructivist one. It was a formalism that operated inside factual problems and in a largely inductive and analogical manner. As for the medieval Italian jurists themselves, they went some way in developing further this internal model through their use of the dialectical method involving an emphasis on divisio and distinctio itself founded on an ‘either … or’ (aut … aut) method (see Chapter 5, section 1). And they were motivated, also, to develop induction in order to produce out of the Roman texts universal rules (regulae) that could be applied to new kinds of problems not encountered in the Roman sources themselves (ex pluribus similitudo colligitur).35 However, both the object of their commentaries and the purpose of their reasoning was different to that of the Roman jurists in that the medieval jurists started out from texts.36 Their purpose was to understand and to teach the rediscovered Roman law and to apply it to the problems of their own time. Yet they also began to introduce some major developments in formalistic thought through more precise definitions of terms and through the internal rethinking of the legal texts so as to reduce the analysis of problems to an ‘either … or’ algorithmic structure. This said, the medieval jurists did not introduce any major taxonomical re-ordering of the Roman materials; they did not try to systematise (ars) the texts in a way that Cicero had once desired. However, they did start to link different texts in a more thorough way,

An obvious example is D.13.6.8. But see also Samuel (2018), at 171–6. Note that this is a more general epistemological process: see Blanché (1983), at

33 34

83.

Stein (1966), at 135 (‘out of many sources is collected a similarity’). Gordley (2013), at 35.

35 36

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primarily by cross-referencing – often resulting in a schematic order37 – but also through tree-like forms (arbor) which established visual links between, for example, the different types of legal action (arbor actionum).38 They did some groundwork, in other words, for the fashioning of an external formalism. Moreover, as we have seen, they confirmed the ‘closed’ nature of legal knowledge: only legal arguments based on the Roman texts were permitted (non licet allegare nisi Iustiniani leges) and thus everything that the jurist needed was to be found in these texts (omnia in corpore iuris inveniuntur) (Chapter 5, section 1).39

3.

FOUNDATIONS OF MODERN FORMALISM

The idea of external formalism emerges with the Renaissance jurists. Many of them sought to recapture Cicero’s dream of ius civile in artem redigendum, that is, of an orderly and systematic presentation of the law (Chapter 5, section 5). As Peter Birks said, the Roman law library was never very orderly but one exception to this was the Institutes of Justinian, which was based on a work that had been published several centuries earlier by the jurist Gaius (approximately 160 ad) (Chapter 3, section 3). The scheme employed by Gaius was the threefold division of law (ius) into persons, things and actions, and, as Birks noted, this scheme provided a ‘map’ of the whole law.40 The problem with it, or at least a problem with Roman law thinking in general, was that the Romans never clearly distinguished between ius and actio. They did not really separate substantive law from the law of procedure and remedies and so in their factual reasoning they tended to ask if an action would lie (or not), rather than approach the issue from a model of pre-existing substantive rules and (or) ‘rights’ (see for example Chapter 3, section 5). This lack of order and this failure to separate remedies (actiones) from substantive rights (iura) was severely criticised by the Renaissance jurist Hugues Doneau (1527–91), who set about reorganising the whole of Roman law through the Gaian scheme. This jurist explained that in doing this, ‘[t]herefore from judgments our right is obtained through rational reasoning (iuris nostri obtinendi rationem), informing us clearly beforehand what is our right, what

Ibid, at 45–51. Errera (2006), at 22–3. 39 Both of these comments are from the Glossators. In D.1.1.1.1 Ulpian, commenting on a text by Celsus saying that law is the art of what is good and fair (ius est ars boni et aequi), goes on to say that with regard to this art we, the jurists, are priests (sacerdotes). So, asks the Gloss, should jurists also study theology? No, is the reply, for everything that one needs to know is in the Corpus Iuris. 40 Birks (1997), at 2. 37 38

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we can deduce from a judgment, what they should have taught us’ (see Chapter 5, section 5).41 One might note, first, that this approach represented a major development in legal formalism not just because of the reordering of the whole of Roman law into an institutional system but also because law was being set out in terms of subjective rights (quod nostrum est). Ius, in other words, had acquired, thanks in particular to the medieval jurists, a more subjective meaning; it became – perhaps through the merging of ius and dominium, which was Villey’s thesis – an individual power (potestas) (Chapter 7, section 9). Certainly, in Doneau’s hands, the entitlements – these iura (‘what is ours’) – were associated with power (sed specialiter facultas et potestas iure tributa or, again, quia iure est haec potestas: ‘because the right to something is this power’).42 These rights in turn were part of justice itself, defined by the Roman jurists as giving each his due (ius suum cuique tribuere).43 Doneau had fashioned one of the first formalised rights models from which a legal situation could be determined by deduction (quod in iudicium deducere possemus). A second point to note is the notions in which these rights and their systematic ordering are embedded, all of which have their origins in the Roman texts. In the Roman sources the ius privatum (private law) was contextualised within three other categories of law: these, according to the jurist Ulpian, were the ius civile, the ius gentium and the ius natural (see Chapter 7, sections 4 and 5).44 All of these categories were to assume a major role in the development of formalism, in that they provided a conceptual space for endowing law with an ‘external’ theoretical basis. In fact, the ius gentium, the law common to all people, was said by Gaius to be founded on natural reason (naturalis ratio)45 and it is this idea of ‘natural’ attaching to ‘reason’ that brought together the two categories of ius naturale and ius gentium in the post-Roman civil law.46 Ulpian had distinguished the two in saying that natural law was more extensive than the law of peoples because it included all animated beings and not just humans.47 And his distinction proved a useful formal way of reconciling slavery (justified by ius gentium) with the notion that all humans were born free (ius naturale).48 Now, the distinction was not ignored by the later jurists, but there was a problem with reconciling Ulpian’s definition of natural law, as

H Doneau, Commentarii de Jure Civili (first published 1596), Book I, Chapter 1,

41

§ 2.

See eg ibid, Book I, Chapter 3, § 3. D.1.1.10pr. 44 D.1.1.1.2. 45 G.I.1. 46 Jones (1940), at 106–7. 47 D.1.1.1.4. 48 D.1.1.4. 42 43

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being that law taught to all animals by nature, with the fact that animals were not endowed with rationality. According to this thesis, naturalis ratio could apply only to people.49 The category of natural law thus became associated with rational or right reasoning (ratio recte) (Chapter 7, section 5).50 But what exactly was meant by this right reasoning? Certainly form was one aspect of ratio, as Alessandro Turamini (1556–1605) indicated: form is part of the human mind and thus expresses itself in legislation (anima in homine ipsius est forma, ita in lege) since it is form that gives things their substance (forma dat esse rei) (see Chapter 4, section 6).51 This of course raises the question about substance. What is the substance of law? What is meant by ius and of what does it consist? The seemingly obvious answer was rules (regulae) and principles (principia) of law, for these were what the Renaissance jurists thought that students should learn when starting out on their studies (see Chapter 5, section 5). Thus by the sixteenth century the emphasis had switched from the detailed substance of the Digest, which had been the source for the medieval commentaries,52 to the three principal texts that seemingly focused on rules and principles. These were the Institutes of Justinian, the penultimate title (D.50.16) of the Digest on the meaning of words (de verborum significatione), and the final title (D.50.17) devoted uniquely to a selection of rules of law (de regulis iuris).53 The Romans themselves, as we have seen (Chapter 4, section 3), were sceptical about rules, but regulae were certainly one focal point for the Roman jurists since they wrote works having this word as the title and often referred to rules in discussing legal problems and situations.54 The increasing development of legislation (leges) further reinforced the idea that law was about rules.55 It is probably reasonable to think that while rules certainly constituted part of ius, there was more to law than just rules. It was the medieval jurists who started to re-orientate the role of regulae under the influence of the logica nova (new logic) that had spread into the Italian law faculties as a result of the rediscovery and translation of Aristotle’s works (Chapter 5, section 2).56 True knowledge (scientia) was to be found Jones (1940), at 106. The expression is used by a range of Renaissance jurists: see for example Alessandro Turamini (1556–1605), De legibus (1592). 51 Ibid, at chap V no 1. The expression forma dat is to be found in the writings of medieval philosophers and in the commentaries of the Post-Glossators: see for example Baldus, comment on D.2.14.7.7 and more generally in the index to his works. 52 See Jones (1940), at 31–2. 53 See Maclean (1992), at 59–66, 83–5. 54 See in particular Stein (1966), at 49–108. 55 Ibid, at 109–23. 56 See generally Errera (2006). 49 50

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via the syllogism; or, put another way, syllogistic logic provided the basis for a true scientia demonstrativa.57 Moreover, such a method permitted the extension of Roman and Canon law to cover an increasing number of new factual situations that were not envisaged in the Roman texts themselves; it was transforming law into a something of a universal ‘science’.58 The syllogism of course depended upon a universal (major) premise and its application to a specific situation (minor premise) and so no certainty could be achieved within the discipline of law without a knowledge of this discipline’s basic principles (principia propria).59 Not surprisingly, the regulae iuris in the Roman sources began to attract the attention of the jurists.60 By the end of the seventeenth century they had become the axiomata of law (Chapter 5, section 6). The formalism and methodology associated with mos mathematicus did not radically change during the Pandectist nineteenth century; principles and concepts of law were still conceived as having an a priori and metaphysical existence outside of any empirical experience.61 And, as with mathematics, the process of reasoning was logical deduction. This ‘dogmatic’ method formed the basis not of a ius naturale but of a scientia iuris, the term scientia having now acquired its modern meaning of science (Chapter 5, section 7). Professor Champeil-Desplats argues that even with the reactions against formalism since the nineteenth century, it nevertheless remains almost impossible for lawyers to escape this instinctive way of thinking. ‘Systematisation, categorisation and deduction’, she writes, ‘are rarely avoided because they are so difficult to circumvent’. While not getting as far as Professor Barker, who, as we have mentioned, stopped counting at thirteen, Champeil-Desplats nevertheless identifies seven different kinds of legal formalism, most of which are similar to the ones enumerated by Barker.62

4.

FORMALISM AND THE COMMON LAW

The similarity between these two lists of what constitutes legal formalism suggests, if Professor Barker is correct, that the common law is not that far removed in terms of formalist mentality from the civil law tradition. To make such a suggestion is not to assert that the common law and civil law are somehow converging or that there are not real differences between the two

59 60 61 62 57 58

Ibid, at 81. Ibid, at 65–6. Ibid, at 77. Ibid, at 105. Champeil-Desplats (2016), at 63. Ibid, at 47–9. For a translation see Samuel (2016), at 20–1.

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mentalities.63 There never was a mos mathematicus tradition within the history of English law (cf Chapter 5, section 8). And while the law administered by the common law courts was formalist, before the nineteenth century reforms it was a formalism that attached to actions and procedure rather than to a substantive set of precepts coherently organised into a system of subjective rights.64 In fact, it may even be that this form of action formalism has been exaggerated to some extent.65 No doubt the lack of a corps of law professors before the nineteenth century and the role of the jury were in part responsible for the difference between the civil and common law, but, as Jeffrey Hackney pointed out, there may well have been a deliberate decision early on to pursue an ‘ideological autonomy’.66 (An early example of Brexit?) When this situation changed with the procedural and legal educational reforms the way was open for an influx of civilian thinking, at least at the level of legal theory and legal taxonomy, for the common law was weak in both of these areas.67 John Austin (1790–1859), with the encouragement of the 1846 Report into legal education,68 brought German Pandectist legal ‘science’ ideas into the minds of English lawyers,69 and legal historians and comparatists such as Henry Maine praised the sophistication of Roman law.70 The result was a series of introductory and jurisprudential textbooks published during the later nineteenth century and early twentieth century presenting civilian ideas as if they were universal notions.71 To quote Jeffrey Hackney again, there was ‘a re-writing of [English] conceptual history prior to the nineteenth-century Reception’.72 If the Robertson and Goudkamp collection is anything to go by, this ‘rewriting’ is still under way, even if there was a temporary respite during the second half of the last century. However, before examining some aspects of this new formalism, the distinction between an ‘internal’ and an ‘external’ formalism needs to be recalled. There are two reasons for stressing this distinction. The

Cf Legrand (1996). See generally First Report of Her Majesty’s Commissioners for Inquiring into the Process, Practice and System of Pleading in the Superior Courts of Common Law, PP, 1851, xxii 567. See also Judicature Commission, The First Report of the Commissioners, 1869, Cmnd 4130, PP XXV. 65 Hackney (1997), at 135. 66 Ibid, at 135. 67 Stein (1980), at 123; Lobban (1991), at 9. Not that practitioners were much interested in taxonomy: see Lobban at 47. 68 Parliamentary Papers: Report of the Select Committee on Legal Education, 25 August 1846. 69 Stein (1980). 70 Ibid, at 86–98. 71 See eg Markby (1871); Holland (1880); Pollock (1896). 72 Hackney (1997), at 137. 63 64

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first is that however casuistic and (or) functionally orientated a legal system might be, there is always a formalistic conceptual structure of internal legal concepts operating within the analysis of factual problems, as has been seen with Roman law (see Chapters 3–4). Take a case that is attacked by a number of the contributors in the Robertson and Goudkamp book. An employee of the defendant negligently damaged an oil pipeline, which caused economic damage to the claimant oil company which used the pipe.73 Had the claimant been the legal owner of the pipe there would of course have been no problem in obtaining damages for this economic loss, since it attached to the physical damage to the pipeline. However, the claimant was not the legal owner as such, since the pipe was held on trust for the claimant and thus they had only what some (including a Law Lord) call a beneficial ownership.74 Previous authority seemed to assert that a ‘beneficial owner’ does not have a sufficient legal interest in the trust property to allow such a beneficiary to sue in negligence; thus any damage to the trust property which causes loss to the beneficiary is pure economic loss and irrecoverable.75 However, the Court of Appeal allowed the claim, asserting that ‘it would be a triumph of form over substance to deny a remedy to the beneficial owner of that property when the legal owner is a bare trustee for that beneficial owner’.76 This assertion suggests at first sight that form was abandoned in favour of substance. This of course was not true. The judges still approached the facts through formal legal concepts such as ownership, trust, possession, contract, duty of care and so on. What was abandoned was a particular kind of formal argument that held that a beneficial owner under a trust was not owed a duty of care. Thus, to argue that ‘the beneficiary does not have some form of ownership’ and that ‘the rule of law […] requires that formalism, which in this context means the application of rules rather than judicial discretion’77 is just as ‘discretionary’ in its assertion as any assertion made by the Court of Appeal. No doubt one might reply using the weight of apparent authority to be found in the law reports, but formalism itself was not abandoned. Perhaps it might have been better, at least if the judges wanted to blunt some of the criticism from the new formalists, to have decided the case on the basis that the economic loss and duty of care rule requires ‘sufficient interest’ rather than to talk about form and substance. This would not of course have silenced the critics, who would still complain that a beneficiary does not have such an interest (although factu Shell UK Ltd v Total UK Ltd [2010] EWCA Civ 180; [2011] QB 86. See eg Ayerst v C & K Construction Ltd [1976] AC 167, at 175. 75 The so-called economic loss rule in the tort of negligence. 76 Shell UK Ltd v Total UK Ltd [2010] EWCA Civ 180; [2011] QB 86 per Waller LJ (giving the judgment of the Court) at para 143. 77 Swadling (2019), at 106 and 118 respectively. 73 74

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ally the beneficiary had a clear interest), but it would hopefully stop the rather unhelpful talk about formalism versus substantivism and pendulum swings between the two (swingometer talk). ‘Metaphorical pendulums are impressive literary devices’, as Professor Hedley has succinctly put it, ‘but have little explanatory capacity’.78 This pendulum talk is unhelpful because there is always formalism in play, and what is at issue is the intensity of an external formalism (mos mathematicus in its extreme manifestation) in relation both to the internal formalism and to the social consequences of a decision. Now, these social consequences are just as susceptible to legal formalisation as, say, the factual ‘proximity’ requirement that underpins duty of care; they have been conceptualised since Rudolf von Jhering (1818­–92) through the notion of an interest (Chapter 6, section 1).79 The new formalists might not like Jhering’s theory but it is just as respectable as Georg Puchta’s (1798–1846) Pandectist thesis,80 and so the issue is really one of competing legal theories. One might at this point recall Joseph Drake’s comment about the influence of formalism on American law (see Chapter 5, section 8; Chapter 6, section 1). Given his reference to society and change, the following question arises with regard to neo-formalism. If the common law has developed along with developments in society, do neo-formalists want to take society back to the social situation of nineteenth-century Germany? Of course, such a question suggests that there is a connection between legal thought and social reality which is a matter of some debate among comparatists (as we have seen: Chapter 6, section 8).81 But even if the relationship is more tenuous than one might think, do we want to discard the Jhering thesis? In her contribution to the collection (which is equally critical of the oil pipeline decision), a professor of comparative law at Oxford seems a little unsure. She describes the nineteenth century as displaying some of the ‘worst excesses of formalistic legal reasoning’ but then goes on to suggest that the reaction against Begriffsjurisprudenz by jurists such as Jhering ‘is a direct sibling to American Realism’, which ‘made the pendulum swing too far the other way’.82 What she would like to see is a return to the mid-twentieth century period of the English common law (but minus Lord Denning),83 and she quotes with approval Peter Birks’ condemnation of Jerome Frank and his intellectual successors (see Chapter 6, section 2).84 This is an odd remark to be made in the twenty-first century. Indeed, one wonders whether 80 81 82 83 84 78 79

Hedley (2018), at 217. Jhering (1913). See also Häcker (2019), at 60. See Puchta (1887). See generally Nelken & Feest (2001). Häcker (2019), at 60–1. Ibid, at 62. Ibid, at 61.

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Professors Birks or Häcker has ever read Frank: is there really anything in his principal work that is, from a social science viewpoint, inaccurate or unconvincing?85 To indicate that it is the ‘jurisprudence of despair’ and ‘hopeless nihilism’86 seems more like the language of the Inquisition – the authority paradigm (see Chapter 2, section 2) – than that of social science enquiry. Surely those who assert what are in essence theories from a past age cannot do this without some serious historiographical and social science reflection? Yet there is, on the whole, little historiographical or social science reflection in the Robertson and Goudkamp book, and this is what makes neo-formalism a little worrying intellectually.87 It is, perhaps, history repeating itself not as farce but arguably as nostalgia or pastiche. It is not, in other words, so much a ‘counter revolution’ as it is a kind of ‘back-to-the future’.

5.

EXTERNAL FORMALISM

There is possibly one exception to this lack of historical and social science reflection. And so the second reason for asserting the dichotomy between internal and external formalism is that the distinction is recognised and discussed, at least in part, by one of the contributors to the Robertson and Goudkamp collection. Professor Dan Priel sets out to investigate the philosophical foundations of doctrinal scholarship.88 In fact, one of the first points he makes relates to the absence of social science reflection by doctrinal scholars. ‘They see themselves’, he says, ‘as “practical” scholars who aim to help the courts reach better decisions […] a task for which there is no need for any serious knowledge of history, economics, psychology, or philosophy’.89 They are not even interested in ‘high theory’.90 As he goes on to say, there is no such thing as theory-free science and so his chapter aims to examine the philosophical assumptions of doctrinal scholarship. His basic thesis is that there are two kinds of formalism.91 There is conceptualist formalism, which ‘sees itself as internal to types of relations among individuals, and uses its analysis of these relations as the basis for legal Frank (1949). Häcker (1997), at 61. 87 See generally Sandberg (2021). 88 Priel (2019). 89 Ibid, at 165. 90 Ibid. 91 It might be worth recalling at this point Steve Hedley’s observation: ‘Formalists do not constitute a discrete school, and it is hard to think of any actual legal thinker (realist, crit, or otherwise) who does not regard formal considerations as having some implications for judicial action, whether they acknowledge the label of “formalist” or not’: Hedley (2018), at 225. 85 86

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analysis’, and there is doctrinal formalism, which ‘focuses its attention on the products of legal officials, and considers proper legal analysis to be internal to that’.92 Before he examines further this dichotomy, Professor Priel explains why formalist lawyers, in both camps, see interdisciplinary approaches to law as an ‘enemy’ to be resisted. Law has its own answers to what people should or should not do; this makes any ‘appeal to other disciplines at best unnecessary and possibly confusing’, and thus the ‘link between formalism and law’s autonomy should not come as a surprise’.93 Priel’s doctrinal formalism is quite similar to the idea that there is an internal formalism. The doctrinalist will start out from cases and seek general principles by way of induction, but they are not hostile to policy considerations since the courts rely on such arguments all the time. However, their view of policy is limited to what can be found in the cases.94 As for legal taxonomy, this is not to be ignored, because it imposes order on the cases, but it is an artificial construction and should be assessed in terms of its practicality. It should not be regarded as a means of imposing some strict external and global coherence onto the law; coherence is a local issue and restricted on the whole to particular legal domains.95 History also matters – or, at least, a particular type of legal history that focuses uniquely on the internal development of legal doctrine – because such a context can have normative implications; a case needs to be examined by looking at its place within the history of past cases.96 Priel sees the work of Professor Stephen Waddams as being typical of this doctrinal formalism (cf Chapter 6, section 3).97 This reference is important because while Professor Waddams sees legal concepts and categories as being at the heart of legal reasoning – he is no extreme anti-formalist – these concepts and categories are open-ended and flexible. This is because facts themselves ‘may be stated at countless levels of particularity, and legal issues and legal rules may be formulated at countless levels of generality’.98 Thus Waddams finally concludes, after a detailed examination of a range of common law cases, that ‘it has not been possible to explain Anglo-American private law in terms of any single concept, nor has any map, scheme, or diagram proved satisfactory

Priel (2019), at 166. Ibid, at 167. This echoes of course the medieval Italian jurists and their attitude to the Corpus Iuris. 94 Ibid, at 171. This point, it is submitted, is open to question; there are examples where the judges appeal directly to particular social situations (real or imagined) that are to be avoided or encouraged: for some examples see Samuel (2016), at 60–4. 95 Priel (2019), at 172. 96 Ibid, at 174. 97 Ibid, at 176. 98 Waddams (2003), at 14. 92 93

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in which the concepts are separated from each other, as on a two-dimensional plane’.99 One can imagine that Aldo Schavione would have little trouble adopting these words as a description of the work and thinking of the Roman jurists (see Chapters 3–4).100 As Professor Priel notes, Stephen Waddams’ views came under a ‘scathing’ and ‘vitriolic’ attack from what he labels the conceptual formalists.101 These formalists take a very different view from the one adopted by the doctrinalists. They start out, he says, not from cases but principles (axiomata?) whose soundness is independent of the cases,102 and thus ‘they are hostile to discretion and think of policy (and politics) as the antithesis of law’.103 Taxonomy and coherence are an essential feature of this rationalist view of law – which itself is the product of human reason – and so they ‘generally think that reality abhors overlapping or conflicting classification, and [they] tend to think that particular events fall under a single classification’.104 In sum, says Priel, conceptual formalism ‘is premised on the idea that the separation of law and other categories of knowledge, as well as the separation among legal categories within the law, corresponds to a pre-existing, rationally discoverable, order of reality’.105 But why should such thinkers be so hostile to Professor Waddams’ account of categories, concepts and legal reasoning in the common law? One cannot imagine that there are many judges in the English Court of Appeal or in the United Kingdom Supreme Court who would take issue with any of Waddams’ assertions and, indeed, some judges might well be grateful for his work in exposing how legal rationality actually operates in practice.106 The answer, says Dan Priel, is that for them doctrinal formalism gives away too much – it might even encourage jurists to engage with interdisciplinary scholarship – and, in indulging in describing cases, indicates that a jurist such as Waddams has no theory.107 It is difficult to know where to start in responding to such an accusation. One immediate thought is to ask just what the conceptualists would make of the late Tony Weir’s open assertion that he had ‘no theory to propound’ (to which one jurist responded ‘that is an interesting theory’) (and see Chapter

Ibid, at 226. For a more detailed review of Stephen Waddams’ book see Samuel (2005). 101 Priel (2019), at 175–7. 102 Ibid, at 167–8. 103 Ibid, at 171. 104 Ibid, at 173. 105 Ibid, at 177. 106 See in particular Waddams (2003). 107 Priel (2019), at 176. 99

100

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12, section 2).108 The question is posed because Weir, with his ‘no theory’ approach, nevertheless produced insights into the law of tort (and indeed contract) that are at least as profound as anything written by a neo-formalist, if not more so.109 However, Priel himself, in a rather devastating footnote, simply shows how the conceptualists who attacked Waddams had not properly read his book and were in breach of their own axiom of constructive engagement with academic legal books.110 If all this is reminiscent of the ius naturale thinking of the past, that is because it is natural law thinking of the past (cf Chapter 5, section 6; Chapter 7, section 5). It is a way of thinking and reasoning founded on the idea that one infers solutions from an a priori model of axioms. More generally, it is an approach that reflects the difference identified by two philosophers between axiomatic and casuistic reasoning.111 Accordingly, analogies with mathematics are almost inevitable because mathematics is the one science that is both vital to many of the other sciences – it is the language of the universe, so to speak – and not based on correspondence with an external object.112 It gains its epistemological validity from its own very strict internal coherence. The modern conceptualists might not talk much about mathematics or, indeed, claim any analogy with it; as Priel shows, their idol is the philosopher Immanuel Kant (1724–1804).113 But the emphasis on coherence is at the foundation of the conceptual formalists’ epistemology because it cannot, of course, locate its validity (by correspondence) in social reality. This is one reason why taxonomy and overlapping categories are such a concern.114 Now, while it is very tempting to write all this off as juristic nostalgia – things were so much better in the past – some care must be taken. Internal, or doctrinal, formalism also has its roots in the past, and so Priel’s defence of doctrinal (or internal) conceptualism could equally be seen as an appeal to former times (things were even better in the more distant past).115 The ‘inner relationship’ between English and Roman law has long been a theme in comparative law.116 The fact is that law is in its essence a nostalgic discipline 108 Weir (1992), at 1616. The rejoinder was made verbally by Professor Pierre Legrand. 109 One thinks of his short essay on the different types of negligence duties: Weir (2004), at 37–8. In fact, his introductory essay to his casebook (at 1-18) remains an insightful text. Professor Priel would no doubt consider Weir to be a doctrinal formalist. 110 Priel (2019), at 176 footnote 32. 111 Jonsen & Toulmin (1988). 112 Puddefoot (2007). 113 Priel (2019), at 179. 114 Ibid, at 173. 115 Ibid, at 183ff. 116 Pringsheim (1935).

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whose ways of thinking and reasoning are the product of a two thousand year (or more) legal history, as indeed this present work has tried to show. It is a history of Roman concepts that also, finally, came to influence the common law in the nineteenth century.117 This is not to decry Professor Priel’s defence, with which many academic law teachers may well feel comfortable. But jurists should perhaps remind themselves that there is nothing ‘natural’ about law as such. As Professor Van Caenegem once pointed out, there is something rather odd about the role of an old book (Corpus Iuris) coming to be so dominant.118 However, with the arrival at an axiomatic stage, and with seemingly no further way forward save perhaps towards the kind of discipline ‘destruction’ feared by the conceptual formalists,119 looking back into the past might seem the only option. What Priel has identified is, in essence, a back-to-the-future choice between the axiomatic stage or the inductive stage, this latter being identified with casuistic rather than deductive methods.120

6.

FORMALISM AND OBJECTIVITY

Care must also be taken with respect to external or conceptual formalism, at least with regard to the Robertson and Goudkamp collection, because there is probably only one contribution in this book that comes close to meeting the criteria set out by Professor Priel. Most of the contributions are doctrinal in their orientation: they start out from an examination of cases, plus, where relevant, statute law, and proceed in their analysis in a way that is more inductive than deductive. The one possible exception is Professor Robert Stevens’ chapter on private law and reasoning, in which he seems at first sight to be displaying what might be called a ‘natural law’ (or perhaps ‘ius gentium’) credential.121 ‘Even if we closed all the courts’, he says, ‘and civil recourse were completely abolished, this would not alter the existence of private law and its duties’.122 However, on a closer reading of the chapter, Stevens does not specifically assert that these private law duties exist in some kind of ius naturale metaphysical world. His point is more that these duties are not dependent upon the actual existence of a law of actions to enforce them. Nevertheless, the position is unclear. In a contribution published a decade earlier Professor Stevens declared, as mentioned in a previous chapter, that although ‘the Greeks literally didn’t have a name for “rights”, all of us at all times and places have them’ 119 120 121 122 117 118

Gordley (2013), at 204–12. Van Caenegem (1987), at 124–6. Priel (2019), at 178. See Perelman (1979). Stevens (2019). Ibid, at 121.

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and that the solving of conflicts between these rights ‘does not depend upon wider social policies or goals’.123 This looks suspiciously like a ius naturale view of the world. As for the definition of a right, this again proves difficult to determine from his contribution to the Robertson and Goudkamp book, but the language of Hohfeld is employed (on which see Chapter 7, section 9)124 and the jurist is actually mentioned at one point.125 If one returns to his earlier paper, where Stevens defines what he means by rights, the Hohfeld connection is specific, although the key distinction (the one to focus upon), he said, is between a claim right and a liberty (see Chapter 7, section 9 on this difference).126 In addition, the very foundation of Professor Stevens’ notion of a right is the private law bilateral relation between two individuals. This is fundamental for legal reasoning, asserts Stevens, because such a bilateral relation imposes constraints as to what is acceptable as justification in right and duty analysis. The reasons must be ‘bilateral in form’.127 This emphasis on Hohfeld and the bilateral legal relation places Professor Stevens’ model very much within a tradition of jural relations which has its origin in the Pandectist thinking of nineteenth-century Germany (see Chapter 5, section 7).128 This means that it is less ius naturale – natural law having been abandoned, as we have mentioned, by then in favour of monism and positivism129 – and more scientia iuris in its universal aspect. From a reasoning position, such a legal science outlook is one that is looking ‘downward to the cases’ and not ‘upward from the cases’.130 Consequently, much of Stevens’ chapter is taken up with applying his ‘bilateral relation’ formal structure to a range of unjust enrichment cases where he argues, broadly speaking, that English restitution law should be founded on the structure of enrichissement sans cause rather than on enrichissement injustifié. (The comparatist might note, however, that France seems to have abandoned the former and adopted the latter, although whether this signifies a change of theory is debatable.)131 The point of this rights analysis, says Stevens, is that it has provided ‘a superior account, both descriptively and normatively, of the law of mistake, duress, undue influence and so on in common law systems’.132 ‘Superior’, in this

125 126 127 128 129 130 131 132 123 124

Stevens (2009), at 164. Hohfeld (1919). Stevens (2019), at 122. Stevens (2009), at 142–3. Stevens (2019), at 124. See Kocourek (1928), at vi. Jones (1940), at 206. Cf Gordley (2013), at 274. Code civil art 1303 (reformed). Stevens (2019), at 146.

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context, is of course a matter of controversy. If one turns to the law of tort, does his bilateral relation rights theory effectively protect ‘rights’? As Professor Hedley has observed: Whether it does so effectively, and whether the very considerable costs of the system are money well spent, are questions which then quietly drop out of sight in his [Steven’s] discussion, and with no hint at an answer. The obvious fact the tort system costs a great deal of money is gleefully used as an argument against others’ theories, but is quietly forgotten in relation to his own.133

There is no doubt that Professor Stevens has presented and applied his thesis with rigour. Yet what might attract the attention of some comparatists and social science epistemologists is not just his appeal to a formalism rooted in theories propounded in previous centuries but also his assertion that he is ‘descriptively’ stating (or restating) the law. This, perhaps, is a characteristic of positivism, a theory associated of course with German legal thinking in the nineteenth century.134 As James Gordley has written: [Nineteenth-century] Positivism is linked to conceptualism. If the texts were the ultimate source of law, then a jurist must be able to derive his conclusions from the texts. If he could not do so, he was presenting his own opinions as if they were law. He was usurping legal authority. Therefore there must be concepts underlying the texts from which his conclusions could be derived.135

Pierre Legrand has added to this view in noting that the positivist is confident ‘that any difficulty addressed analytically can be resolved analytically’ and that he or she ‘incessantly strive[s] for the brand of fixity or invariance of meaning that is more readily associated with the Pythagorean theorem or the laws of thermodynamics’.136 In praising Kocourek’s work on jural relations, John Wigmore seemed to have confirmed this view; legal science needed to take its cue from some of the applied sciences, such as engineering and medicine.137 However, the idea that law can be stated in an objective and descriptive way is one that has come into question in recent years. Is it actually possible to state what the law is? Certainly there are plenty of comparatists who think so.138 And in the Robertson and Goudkamp collection one finds statements

135 136 137 138 133 134

Hedley (2018), at 229. Gordley (2013), at 195–274. Ibid, at 196. Legrand (2017), at 27. Wigmore (1928), at xxii-xxiii. See Legrand (2017) for some examples at 27–8.

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such as ‘the correct view of the matter’139 and ‘the law is at risk of being in perpetual motion’ (implying that it should not be in motion, that is to say, fixed and objective).140 Yet Pierre Legrand is adamant that, at least with respect to comparative law,141 it is simply not possible for a comparatist to state what a particular foreign law, or area of foreign law, is. His thesis is ‘that it simply cannot be that even the comparatist most ideologically committed to the strongest form of positivism imaginable […] can escape the epistemically constitutive role of the prejudicial fore-structure or eschew the process of invention that characterizes the interpreter’s interaction with law-texts’.142 Or, to put it more economically, ‘no foreign law is retrievable beyond the comparatist’s re-presentation of it’ and thus ‘any idea that he could uncover The-One-True-Meaning of a foreign-law text pertains to a futile and unsustainable indulgence in transcendentalism’.143 More generally, and in a somewhat similar vein, Professors Vincent Forray and Sébastien Pimont have argued that to ‘describe the law is to transform it’.144 As we have seen (Chapter 1, section 6), they say that every attempt to ‘describe’ a law, or the law, ends up by transforming it in some way or other because the ‘law has no real existence to the extent that it resides outside of the text’.145 What ‘exists’ is formalism. Thus, as Forray and Pimont go on to observe, ‘the history of formalism is so rich’ that it is ‘up to a certain point […] the history of law itself’.146 In seeking to describe, the law jurists collectively, through their literature, produced a form of the law, and so ‘in actualising the language of the law, while applying it, they promote legal formalism’.147 Description, they say, is an act of construction, and the formal structure is continually confirmed by a methodology described, as we have seen, as dogmatic. Textbooks thus describe the law ‘as if’ it is a coherent formal structure that exists independently of the text itself. ‘The substance or material basis of the law’, as Forray and Pimont put it, ‘is represented to the world by its fixation in a form’.148 And, as they also say, this form gives law its appearance as a rational order which is nothing less than a ‘fiction légitime’.149 Swadling (2019), at 107. Lee (2019), at 303. Note again Legrand (2017), at 36: ‘Positivism craves fixity of meaning.’ 141 Although he suggests that his thesis applies beyond comparative law: Legrand (2017), at 30–1. 142 Legrand (2017), at 29. 143 Ibid, at 31 and 40 respectively. 144 Forray & Pimont (2017). 145 Ibid, at 106. 146 Ibid, at 164. 147 Ibid, at 298. 148 Ibid, at 173. 149 Ibid, at 334. 139 140

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CONCLUDING REMARKS

It is tempting to see neo-formalism as nothing but a fictitious (transcendental nonsense) construction of a heaven in which there exist, as supposed realities, rights and legal axioms. And indeed a fiction theory of legal reasoning has been argued elsewhere (and see Chapter 1, section 3; Chapter 2, section 5; Chapter 4, section 3).150 Just as churchgoers act ‘as if’ God exists, so lawyers act ‘as if’ there are legal concepts and legal forms.151 However, perhaps a more immediate conclusion resulting from an historical jurisprudence perspective is to say that neo-formalism is little more than a kind of legal nostalgia. It is an attempt to resuscitate theories from the age of natural law and Pandectist legal science – theories formed within social contexts utterly different from today’s – without any kind of social science research by the neo-formalists to support their views.152 It is thus, on one definition, also a form of legal pastiche: that is say, the empty harking back to obsolete models.153 Viewed from the perspective of comparative law (and indeed comparative legal history), such neo-formalism could also be seen as an attempt at a legal theory transplant; that is to say, an effort to introduce into the common law the theories of jurists such as Leibniz, Heineccius, Savigny and Puchta. What the work of common law experts such as Professor Waddams indicates is that there is anything but a rich soil (to continue the transplant metaphor) in which these ideas could flourish. The common law is a tradition in which argumentation and casuistic reasoning – not deduction from axioms – is how one arrives at the law to be applied to any particular set of facts (see Chapter 5, section 9). Indeed, some of the academic arguments against this approach, as Professor Hedley has indicated, are, intellectually speaking, bordering on the ridiculous.154 None of this is to suggest for a moment that the theories of the Roman jurists, the medieval commentators, the humanists, the natural lawyers and the Pandectists should not form part of the law curriculum. That students should graduate with no knowledge of these jurists is rather extraordinary given, again as the previous chapters have hopefully indicated, the sheer richness of this intellectual tradition. What other social science disciplines would ignore those past theorists who constructed the foundations of their subject? However, stu Samuel (2015) and Samuel (2018), at 229–57. But cf Penner (2019). Samuel (2015). 152 See Hedley (2018). Traffic accidents in the UK are still governed by a legal notion (culpa) fashioned in the days of very slow moving wagons on public roads such as the Capitoline hill of Republican Rome: D.9.2.52.2; Mansfield v Weetabix Ltd [1998] 1 WLR 1263. This situation is, with respect, ludicrous. 153 Dyer (2007), at 7. 154 Hedley (2018), at 221. 150 151

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dents ought not to learn these jurists’ views second or third-hand via contemporary theorists trying to pass them off as somehow modern and original (not to say as their own). They should not learn pastiche theories. Students should study these historical theories in the context of sophisticated courses sensitive to the historiographical issues that attach to looking at the past.155 Unfortunately there is little of such sensitivity in the work of the neo-formalists. Indeed, if there were any such sensitivity, all of the neo-formalists would, for example, have been very careful indeed before employing expressions such as ‘private law’ and the ‘law of obligations’ in the context of the common law. More of a touch of the old philosophy, as Professor Hackney would say.156

On which see Cocks (1988). Hackney (1997).

155 156

10. Have there been scientific revolutions in law? In a previous chapter Thomas Kuhn’s work was examined in some detail, with the aim of considering his thesis and terminology before examining whether it has any application to the discipline of law (Chapter 1). The first of these considerations was undertaken by asking the question whether or not law is a science. The conclusion was one of scepticism. Nevertheless, for the purposes of this chapter law will be treated ‘as if’ it is a science, since this will permit one to go on to consider other questions regarding Kuhn’s theory.

1.

REVOLUTIONS AND LEGAL THOUGHT

If law is not a science then one could conclude that the idea of scientific revolutions has no relevance to the history of legal thought. It is simply not amenable to this kind of analysis. Indeed, no theory that has been fashioned in law has been free of anomaly and controversy, and so incompatible theories are capable of existing at the same time.1 Yet there is, as has been mentioned, one theory that might provide a different approach. Fiction theory might allow an epistemologist to assert that legal theories and models should be regarded ‘as if’ they are scientific assertions (see Chapter 1, section 3; Chapter 2, section 5).2 Such a thesis would not, of course, have appealed to Professor Birks, who regarded the idea of ‘as if’ (quasi) categories as unscientific.3 Yet it might be valuable to adopt this ‘as if’ thesis as an epistemological attitude in that it allows one to consider whether there have been ‘paradigm’ changes, or ‘revolutions’, in the history of legal thought. Have there been such revolutions? If one examines the literature, as reflected in the previous chapters, three possible periods in the civil law tradition seem to present themselves. The first is the twelfth century, the subject of a work specifically entitled ‘Law and Revolution’.4 The second period is the sixteenth century, which has attracted

3 4 1 2

Atias (1985), at 201­–2. See generally Jones (1940), at 164–6; Samuel (2015). See generally Birks (1997). Berman (1983). 247

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a specific investigation by Ian Maclean.5 The third period is the end of the nineteenth century, which was investigated by a French jurist who posed directly the question as to whether or not there was a Kuhn-type revolution provoked by jurists such as François Gény (1861–1959) and Hans Kelsen (1881–1973).6 When one looks at the common law, again three periods emerge as candidates. Sir John Baker identifies the sixteenth century as one of profound change, especially with regard to the procedures associated with judicial law-making.7 The nineteenth century saw not just the abolition of the forms of action but the growth of a more serious system of legal education.8 The century equally witnessed the growth of a textbook tradition.9 These nineteenth-century developments matured throughout the twentieth century, but the impact of American Realism – which, as has been seen (Chapter 6, section 1), shifted the focus onto a functional approach – might qualify as another candidate.10 The rediscovery of Roman law in the eleventh century was undoubtedly a major event that would have profound intellectual consequences. That rediscovery, it may be recalled, gave rise to a succession of clerics who cross-referenced and explained the Roman texts in marginal notes, which in turn endowed this group of jurists with their label, namely the Glossators (see Chapter 5, sections 1 and 2).11 Their centre of learning was the University of Bologna. Harold Berman’s thesis is that this period – in particular 1150–1200 – was revolutionary in that this was when ‘legal systems were created for the first time both within the Roman Catholic Church and within the various kingdoms, cities, and other secular polities of the West’.12 The Glossators, argued Berman, ‘gave the West its characteristic methods of analysis and synthesis of texts’ in that they ‘taught the West to synthesise cases into rules, rules into principles, principles into a system’.13 According to Berman, this transformation was nothing less than an intellectual revolution that parallels Kuhn’s scientific revolutions.14 ‘In science, the old truth may have to give way to a new one’, notes Berman, and so in law ‘the old justice may have to give way to a new one’.15

7 8 9

Maclean (1992). Atias (1994), at 96–103. Baker (2019), at 89–93. Ibid, at 74–76. Ibid, at 202–203. 10 See generally Twining (1973). 11 See Maruotti (2011), at 93–110. 12 Berman (1983), at 49. 13 Ibid, at 529. 14 Ibid, at 22. 15 Ibid. 5 6

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There is no doubt that this new learning in law was different from anything that had been available in the centuries that immediately preceded the school of Glossators. The Glossators re-established the legal learning and legal method that had characterised the classical period of Roman law itself. Indeed, they enriched this learning through applying the Roman texts to new problems and in using the rediscovered works of Aristotle to develop the dialectical method from mere division and distinction towards one founded on syllogistic logic.16 Yet when one looks backwards to the Roman jurists and their literature one encounters some fundamental problems with regard to the assertion that there was a paradigm change in legal thought in the period identified by Berman. Were the thought processes of the medieval jurists so different from those of the Roman jurists that the two groups could be said to be on different planets? When one actually examines in detail the legal literature of the two groups it is arguably rather difficult to identify two quite different ‘normal sciences’. Take the following rule, as expounded by a Roman jurist: ‘Bare delivery never (numquam) transfers ownership, but only (sed ita) if preceded by a contract of sale or some other legal ground (iusta causa) followed soon after by delivery.’17 The Gloss on this rule is as follows: ‘Numquam’ (Never). A bare delivery does not transfer ownership, but delivery does if there is a ground (causa) such as a contract of sale or something similar. ACCURSIUS. ‘Sed ita’ that is to say ownership (dominium) is transferred by conveyance (traditio). ‘Iusta causa’. Real or putative: otherwise if you say it is a putative cause ownership is not transferred: D.12.6. As to the situations concerning title when ownership in a thing is passed to someone pursuant to a putative cause, it is the same as with a promise by way of stipulation: see D.44.4.2.3. Without cause: see D.22.3.25.4. Bare pact: C.2.3.20; D.39.5.26 […]18

Can one really say that these two jurists are living on separate planets? Is the Roman jurist seeing a ‘duck’ while the Glossator is seeing only a ‘rabbit’? Of course, there are differences of approach. The Roman jurists usually had a factual situation as the object of their analysis while the medieval jurists had a text.19 Moreover, the medieval jurists were faced with a mass of concepts that must have made little sense to them given the feudal context of their own period. Yet what they did was to take the Roman texts and apply them to the factual situations of their own time using methods that were not that dissimilar Errera (2006). D.41.1.31. 18 Original text taken from Hattenhauer-Buschmann, Privatrechtsgeschichte der Neuzeit, CH Beck. 19 Gordley (2013), at 35. 16 17

Textbuch

zur

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to the writers in the Digest.20 It is of course impossible to know, given the time gap between the two groups of jurists, just what the Romans would have made of the medieval interpreters of their work. But just reading the texts it is extremely difficult to conclude that there was any kind of paradigm difference between the two groups. The medieval jurists were striving to adopt and continue the mindset of their forebears. In the sixteenth century there was, as we have seen (Chapter 5, sections 3–5), a significant change of attitude and method which has equally attracted the expression ‘revolution’.21 The humanist French jurists no longer regarded the Roman texts as authoritative simply because they were revered ancient documents which could be traced back, via Justinian, to the authority of God. The humanists regarded the Corpus Iuris Civilis as a historical document whose texts had not all been produced at the same time.22 And this difference of vision gave rise to a difference of programme: the Digest was examined ‘with the intention of restoring Greek passages, interpreting literary illusions, and elucidating philosophical concepts’ together with ‘a sense of original context and of historical change’.23 This attention to the language used in the Roman texts required very different methods from the scholastic dialectics that had been employed by the medieval Romanists. The search for reliable manuscripts in terms of textual authenticity necessitated the perfection of historical methods. Philology became a fundamental tool in the search of the true classical material in the Roman sources and the weeding out of Byzantine interpolations,24 for the humanists were searching for ‘the “true” Roman law’ which ‘had been superior to all other legal systems which had come after it and was to serve as a constant reference point’. They ‘were obsessed by the idea of original purity and the authenticity of texts’.25 This philological and historical turn was not the only change of approach. Alongside what might be called l’humanisme historiciste there was l’humanisme systématique (see Chapter 5, section 5).26 This second group of humanists shared with the historicists the desire to rediscover the ‘true’ Roman law, but instead of putting the emphasis on the language of the texts, they were more

20 Ibid, at 32–45. Certainly the medieval jurists employed a much more refined dialectical method and in the hands of a later medieval jurist like Bartolus (1313–57) this method had virtually become algorithmic in its structure (see Chapter 5, section 2). 21 See eg Franklin (1963). 22 Thireau (2003). 23 Kelley (1990), at 188. 24 See generally Kelley (1970). 25 Thireau (2003), at 796. 26 Ibid, at 798­–9.

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interested in the systematisation of Roman law.27 The most important and influential of this group was the French jurist Hugues Doneau (Chapter 5, section 5), who set about re-arranging the order of the Digest using the Gaian classification scheme of persons, things and actions.28 This was not his only innovation. One of the characteristics of Roman law itself, as evidenced in the Digest, was an intermixing of what today one would call substantive rights with the procedural availability of actions. Ubi remedium ibi ius. Thus many Roman texts expounded the lawfulness or unlawfulness of a factual situation by posing the question of whether or not a claimant has an action (see Chapter 3, section 4). Doneau was contemptuous of this because it meant that potential litigants had no means of knowing their ‘rights’ before the litigation itself.29 He thus not only rearranged Roman private law, but also approached the material from the position of what civilians today call the ‘subjective right’ (ius).30 He was, accordingly, one of the first of the modern jurists in that, first, he clearly separates substantive rights (‘what is ours’ and ‘what is owed to us’) from legal procedure31 and, second, he sets out private law in a systematic and coherent way that is still current today in civil law thinking.32 Ubi ius ibi remedium. Another way of expressing this is that Doneau not only made a clear distinction between the law of persons and law of things, but also went a long way in creating the modern distinction between law and procedure by in effect elevating obligations to the generic category once occupied by actions (see generally Chapter 8, section 2). That the humanist jurists belonged to a different school than the medieval Italian jurists who had formulated the ius commune was recognised at the time. The former attracted the label mos Gallicus while the latter was called the mos Italicus.33 However, the fundamental question is this: did this change of approach and methods amount to a paradigm revolution? Donald Kelley suggests that it did. He argues that Lorenzo Valla (1407–57), who was the first to develop seriously a philological approach to Roman law, ‘represents, in terms of the sciences of culture, the emergence of a new “paradigm” in much the sense that Thomas Kuhn has applied this term to scientific revolutions’.34 Valla, continued Kelley, had established ‘a method and an epistemology’

Ibid. Doneau, Commentarii de Jure Civili (1596) (18 to 28 volumes depending on publisher). 29 Doneau, Commentarii de Jure Civili, Book I, Chapter I, § 2ff. 30 Ibid, Book I, Chapter I, §§ 3–8. 31 Ibid, Book I, Chapter I, §§ 5–8. 32 Ibid, Book I, Chapter I, § 13; Book II, Chapter VII, § 4. 33 Gordley (2013), at 118. 34 Kelley (1970), at 44–5. 27 28

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and had ‘promoted philology to the level of a science’. It was comparable to ‘Copernican astronomy’ in that ‘it became the basis for a new perspective of the world and man’s place in it’.35 Kelley does admit that it is probably going too far to call Valla the Copernicus of historical thought, since his discoveries were not that unique. But he nevertheless helped create a new paradigm which would endow the following century and beyond with a new ‘normal science’.36

2.

WAS LEGAL HUMANISM A REVOLUTION?

As has been indicated, there is no doubt that the sixteenth century was a time of important methodological and epistemological change.37 If one were to apply the epistemological framework suggested by the philosopher of science Robert Blanché (1898–1975), it might well be said that legal thought was in the process of moving from the inductive to the deductive stage of ‘scientific’ development.38 Yet there are real difficulties in going further and asserting that these changes amounted to a paradigm revolution. The first difficulty is identified by James Gordley. This jurist argues that if ‘the humanists had merely been seeking a more accurate version of the Corpus Iuris and a better understanding of the meaning of its words in its ancient context, their methods and those of the medieval civilians could have been accommodated’.39 The real problem, says this author, was the hostility between the humanists and the medieval jurists, which was bordering on war.40 Thus the humanists found it easy to attack the medieval jurists’ attitude to Roman law, but there was equally a difficulty with their own assumptions. They assumed that Roman law was perfect and that what was being taught to students by the Glossators and Post-Glossators was identical to the law of Rome.41 Yet, as Gordley makes clear, these latter jurists were involved in a different task from the one pursued by the humanists. They were seeking to apply authoritative texts to situations with which the texts did not expressly deal, and in doing this their assumptions 35 Ibid, at 45. It should perhaps be pointed out that Kelley makes a very similar claim about the immediate post-revolutionary historians in early nineteenth-century France; but here he is talking less about ‘paradigm’ change in law and more about history and historiography: Kelley (1984), at 3–8. Again, however, Kelley does step back from claiming that there was actually a ‘paradigm-shift’ (at 5–6). 36 Ibid. 37 Maclean (1992), at 15 (‘disruptive influence’). 38 Blanché (1983), at 65. He saw science progressing from a descriptive stage to an axiomatic stage, passing through inductive and deductive stages on the way. For an extract from Blanché on this movement see Samuel (2016), at 148. 39 Gordley (2013), at 113. 40 Ibid, at 113­–14. 41 Ibid, at 114. Gordley references on this point the work of Franklin (1963).

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and their methods had, by nature, to be different. It was not a question of searching out the true meaning of a Roman text in any deep hermeneutical sense; the task was to apply the text to a situation that by definition had not occurred to the Roman author of the legal statement.42 The actual result of this difference of programme is that there was not a sudden change in the ‘normal science’, since the traditional methods of the mos Italicus continued right into the seventeenth century.43 Indeed Gordley (and others such as Berman) argue that the scholastic methods developed by the medieval jurists are basically those in use today by practitioners.44 Accordingly, there was never really a question of one ‘normal science’ suddenly replacing another; there were two ‘normal sciences’, one associated with humanist academics applying interdisciplinary approaches to law and another attaching to practitioners. As we have seen, there are jurists and lawyers today who employ different – sometimes very different – methods, but no one is talking about scientific revolutions (see Chapter 9, section 5). A second difficulty with the scientific revolution thesis has been exposed by Ian Maclean. In his examination of interpretation of law in the sixteenth century (see Chapter 5, section 4), this author continually shows how much of the new humanist legal literature was founded on work done by the medieval predecessors, if not by the Roman jurists themselves.45 This leads Maclean to pose this question. Can one say that by the end of the sixteenth century a new approach had been developed? His response is to say ‘not very great[ly]’.46 It would, he asserts, ‘be a mistake to underestimate the continuity provided by, on the one hand, the Aristotelian tradition and its characteristic modes of thought, and, on the other, the concerns proper to the legal profession itself which predispose it to a certain set of assumptions about the relationship of words and things’.47 Yet perhaps his most devastating comment with respect to the Kuhn thesis comes when he argues ‘that a writer in 1460 could have communicated coherently with one in 1630’.48 Maclean is of the view that while there was certainly change in the sixteenth century – no historian of the civil law seems to deny this – there was no revolution which resulted in a change of planet. The duck had not become the rabbit. In fact, if one is to give some credence to Kelley’s view about ‘normal science’, it would probably be reasonable to say that two ‘normal sciences’ 44 45 46 47 48 42 43

Ibid, at 117. Jones (1940), at 34–5; Maclean (1992), at 16. See eg Gordley (2013), at 32, 33, 42. See eg Maclean (1992), at 38, 83–5, 111–14. Ibid, at 85. Ibid, at 85–6. Ibid, at 205.

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were subsequently to blend into one in the civil law world as a result of an epistemological shift within what might be called the authority paradigm. This paradigm, which was discussed earlier (see Chapter 2, section 2), is one that determines the overall approach of those working within a discipline such as law or theology. Texts can be criticised and can be interpreted (within limits set by the authority paradigm) but they can never be questioned in terms of their authority; a law is the law. Indeed, Maclean seems to have identified such a paradigm in his examination of interpretation.49 The source of the paradigm in the medieval period was the existence of the ancient text itself; it had its own auctoritas.50 However, one epistemological change that came with humanism was the destruction of this textual auctoritas – for, as has been seen, the Corpus Iuris was now viewed as an historical document – and this of course could have resulted in the destruction of the authority of Roman law itself. The fact that this did not happen is due to the work of l’humanisme systématique, which sought to endow Roman law with a scientific authority, namely its internal coherence as a system.51 Rationalism was now a form of legal auctoritas in itself.52 This new form of authority was to flourish in the two centuries following the path-breaking work of Doneau under the title mos geometricus or mos mathematicus (Chapter 5, section 6),53 and it has by no means disappeared from contemporary epistemological thought (see Chapter 9).54 There was, then, epistemological change, but it was hidden behind a continuing notion, that of auctoritas, which has underpinned law from Roman to modern times.55

3.

REVOLUTIONS AND THE COMMON LAW

To what extent did this epistemological and methodological change that took place in the sixteenth century affect the lawyers and jurists in the English common law? It is of course common knowledge that the English legal institutions developed largely outside of the Roman law learning that dominated much of continental Europe.56 There are no doubt a number of reasons why England remained for many centuries outside of the ius commune scholarly tradition, but two institutional differences possibly hold the key to this isolation: first, procedure and secondly, the lack of law faculties teaching the

Maclean (1992), at 40. Ullmann (1962), at 359–66. 51 See Riaudel (2007), at 1367–8. 52 Ibid. 53 See Gordley (2013), at 165–94. 54 See Champeil-Desplats (2014), at 60–3, 150. 55 See further Samuel (2012). 56 For a useful summary see Stein (1999), at 86–8. 49 50

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common law before the nineteenth century (indeed, most of England’s law faculties were not established until well into the twentieth century). If one looks backwards at the common law from the sixteenth century one sees that there was not really any substantive common law being applied by judges to particular factual situations. Instead there were courts whose prime function was to settle disputes between parties within a structure of procedural rules designed to reduce the dispute to a series of questions for the jury. The lawyer’s ‘business was procedural, to see that disputes were properly submitted to the appropriate deciding mechanism’.57 The judge was not there to say the law but to act as a referee and no one ‘looked to litigation as a means of creating or refining legal doctrine, any more than one would watch or play chess in the expectation that new and more sophisticated rules of chess will emerge as more games are played’.58 This was to change in the sixteenth century. The change came, it would seem, from litigants, who progressively became more and more dissatisfied with the common law courts as dispute resolution institutions; they wanted answers on substantive points of law together with decisions founded on reasoning.59 In the sixteenth century the role of the jury became restricted to making decisions on questions of fact while judges, on motions for a new trial and the like, made decisions on questions of law.60 The system was transformed, with the result that the English legal process started its long journey – with the help of increasingly improved reporting of judicial decisions – towards a precedent based substantive law supplemented, of course, by legislation (see Chapter 5, sections 8 and 9).61 Was this transformation a paradigm revolution, perhaps stimulated by the humanist new learning on the continent? Reading Sir John Baker’s exhaustive account of the sixteenth century, there are very strong grounds to doubt any kind of paradigm change in the sense that a seventeenth-century lawyer or judge would be unable to communicate with his fourteenth-century predecessors. For a start, all the various means of achieving the sixteenth-century transformation existed before this century, which meant there was no rupture as such, only development.62 Second, just as there was a ‘reception’ of Roman law on the continent, there was a kind of ‘reception’ in England in the sixteenth century. However, ‘it was a Reception of Holborn law, and Temple law, rather than Roman law’. This ‘tough law of the inns of court’ might have acted as a barrier to any reception of Roman law, but it ‘was indeed susceptible to new 59 60 61 62 57 58

Milsom (1981), at 83. Baker (2003), at 50. Ibid, at 50–1. Baker (2019), at 89–93. Gordley (2013), at 23. Baker (2003), at 385.

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ways of thinking about the legal process and the development of the courts’.63 At the level of substantive law, then, there was development, but it is difficult to see this change as a ‘revolution’. Nevertheless, Baker’s own view is interesting. While he does not even think of venturing into the world of Thomas Kuhn’s epistemology, he does make the point that legal continuity is often an illusion; it enables ‘radical changes to be effected without anything much appearing to have happened’.64 Perhaps law, or at least English law, is simply not conceptually or institutionally suited to any kind of Kuhnian analysis.65 This said, legal education and legal literature must not be left out of the account when asking why continental humanism had so little influence on English law (see Chapter 5, section 8).66 There was no core of university professors learned in the works of continental legal scholarship. ‘Had the early Tudor authorities insisted upon an academical law degree before call to the bar’, writes Baker, ‘that might indeed have revolutionized the history of English law and achieved what books alone could not’.67 Instead legal education was located in the Inns of Court, which had their own learning exercises and methodology.68 Moreover, this professional legal knowledge to be found in England was in some ways – but not in others – very different from Roman law in that before the nineteenth century it made little or no use of the great concepts such as possession, ownership (dominium), consent or fault, but was focused on the various forms of action. There might, accordingly, have been a gradually developing case law from the sixteenth century, but before the nineteenth century these ‘cases gave rise to a body of lore that grew up around each writ without reference to any such general concept[s]’.69 This forms of action and practical case mentality was reflected in the legal literature, which, while perhaps slowly improving, indicated no change of paradigm in the sixteenth century. There were no law books expounding principles.70 The seventeenth century did see ‘a torrent of new law books’ but most of them were ‘badly written and of little value’.71 One had to wait for William Blackstone’s Commentaries on the Laws of England (1765–9) for something that could be described as a new kind of legal work.72 Ibid, at 52. Ibid, at 12. 65 Cf Fekete (2021). 66 On the influence see Baker (2003), at 15–18. Baker highlights some important indirect influences. 67 Ibid, at 12. 68 Ibid. 69 Gordley (2013), at 22. 70 Baker (2019), at 198–200. 71 Ibid, at 199. 72 Ibid, at 202. 63 64

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The sixteenth century did not, then, witness a scientific revolution in the Kuhnian sense of a change of planet. There was change, as has been seen, but there was no radical re-orientation of legal thought. In the nineteenth century, however, the changes in legal thought in England were on a different scale. Throughout the century there was fundamental reform of the courts and of procedure, and this impacted on the way substantive law was perceived.73 There was also to be a fundamental change in the legal literature and in legal education. Sir William Blackstone (1723–80) was a pivotal figure in that he was the first professor of the common law, and his Commentaries represented, for English law, a new type of work. Viewed from the continent it was in many ways nothing new in terms of a paradigm, since it simply attempted to set out English law according to the structure of Justinian’s Institutes.74 However, from an English law perspective it ‘gave the common law a coherence and unity not seen before’.75 Nevertheless, as Michael Lobban has shown,76 there were real problems in trying to make English law conform to the institutional structure, and this problem has not disappeared even in the twenty-first century (see Chapter 9, section 4). In addition the English legal mentality, at least for much of the nineteenth century, was not attuned to the kind of deductive (mos geometricus) approach that had grown out of the humanist movement on the continent. English lawyers remained committed to a procedural and remedies orientation (see Chapter 5, section 9).77

4.

ENGLISH LAW IN THE NINETEENTH CENTURY

In fact, to describe this situation in these terms is to underestimate the chaotic situation that the Victorians found when it came to legal reform. The haphazard way in which the courts of England had developed since the medieval period was to result in a situation that, to a civil lawyer, must have seemed a little bizarre. As a Parliamentary Commission reported: This distinction [between law and equity] led to the establishment of two systems of Judicature, organized in different ways, and administering justice on different and sometimes opposite principles, using different methods of procedure, and applying different remedies. Large classes of rights, altogether ignored by the Courts of Common Law, were protected and enforced by the Court of Chancery, and recourse 73 Jeremy Bentham (1748–1832) was an important influence on this reform movement: see Stein (1980), at 70–2. For a very brief but excellent summary of why reform was needed in the nineteenth century see Wilson (1973), at 10–11. 74 Cairns (1984); Lobban (1991), at 19–26. 75 Lobban (1991), at 18. 76 Ibid, at 40. 77 Ibid, at 47–79.

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was had to the same Court for the purpose of obtaining a more adequate protection against the violation of common law rights than the Courts of Common Law were competent to afford. The Common Law Courts were confined by their system of procedure in most actions, – not brought for recovering the possession of land, – to giving judgment for debt or damages, a remedy which has been found to be totally insufficient for the adjustment of the complicated disputes of modern society. The procedure at common law was founded on the trial by jury, and was framed on the supposition that every issue of fact was capable of being tried in that way; but experience has shown that supposition to be erroneous. A large number of important cases frequently occur in the practice of the Common Law Courts which cannot be conveniently adapted to that mode of trial; and ultimately those cases either find their way into the Court of Chancery, or the Suitors in the Courts of Common Law are obliged to have recourse to private arbitration in order to supply the defects of their inadequate procedure. The evils of this double system of Judicature, and the confusion and conflict of jurisdiction to which it has led, have been long known and acknowledged.78

This was not the only problem the Victorians faced with regard to English law. The system of the forms of action was equally seen as a major issue. As another report noted: A mistake as to the form of action may be of much more serious consequence than the defects in pleading which we have been hitherto discussing, as it is not always cured by pleading over (as errors in form, strictly so called, are), or even after verdict; but the objection may be raised on general demurrer, or, after verdict, by motion in arrest of judgment, or by writ of error, although it may be quite beside the real merits of the case.79

And the report continued: The necessity of adhering to these forms sometimes subjects declarations to objections, on special demurrer, and has led to plaintiffs being defeated after establishing a good cause of action, on the ground that the form of action has been mistaken. It remains to be considered whether any countervailing advantage results from maintaining these forms. We think not. It appears to us that; if the acts which constitute the cause of action be sufficiently set forth in the declaration, all the legitimate purposes of pleading are thereby accomplished, and that to incumber the pleading with formal requirement, which afford no additional information, but which open a door to-technical and captious objections, is not only useless but mischievous, We

78 Judicature Commission: The First Report of the Commissioners, 1869, Cmnd 4130, PP XXV, at 5–6. 79 First Report of Her Majesty’s Commissioners for Inquiring into the Process, Practice and System of Pleading in the Superior Courts of Common Law, PP, 1851, xxii 567, at 31.

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feel ourselves, however, bound to state, that much difference of opinion exists in the legal profession on this head.80

As a result of these, and other, reports the forms of action were abolished. 81 They were replaced by a procedural system in which the plaintiffs (claimants) need only state the facts. This meant that the old forms of thinking had to change to some extent. As one Court of Appeal judge observed: They did not abolish forms of action in words. The Common Law Commissioners recommended that: but it was supposed that, if adopted, the law would be shaken to its foundations; so that all that could be done was to provide as far as possible that, though forms of actions remained, there never should be a question what was the form. This was accomplished save as to this very question of costs in actions within the county court jurisdiction. Until the passing of the statute [County Courts Act] we are discussing, it was necessary to see if an action was assumpsit, case &c. But the Common Law Procedure Act having passed, and the forms of actions being practically abolished, the legislature pass this Act dropping the words ‘assumpsit, case’, &c., and using the words ‘founded on contract’, ‘founded on tort’.82

One can see at once how the ‘new’ language of Roman legal thought (contract and tort) had entered into the common law. These were not the only Roman categories and concepts. More generally English lawyers were employing the great concepts of civilian scholarship such as possession, fault and consent.83 Indeed, between 1850 and 1880 there are numerous references in the case law to civilian writers, and these references were used to help consolidate a general theory of contract.84 Legal education, which was in the process of being revived after a Parliamentary Commission Report of 1846, and the growing number of legal textbooks also made an important contribution to this movement towards a more continental way of viewing law. Indeed, the textbook tradition of the nineteenth century probably acted as a kind of surreptitious codification of the common law.85 Law was now a matter of substantive rules (regulae iuris) rather than a mass of remedies (actiones).

Ibid, at 33. Common Law Procedure Act 1852 s 3. 82 Bramwell LJ in Bryant v Herbert (1877) 3 CPD 389, at 390. 83 Gordley (2013), at 204–12. 84 See Samuel (2010), at 8–9 and case references therein. See also Samuel (2007), at 10–12. 85 Hedley (1999). 80 81

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5.

REVOLUTION IN THE NINETEENTH CENTURY?

This ‘Romanisation’ of the common law continued to some extent throughout the twentieth century. Peter Birks, like Blackstone, attempted to rethink the common law through the institutional scheme, and he was particularly influential in building upon the thesis of Goff and Jones’ The Law of Restitution.86 This thesis had advocated the adoption of the Roman law principle of unjust enrichment to explain and underpin a range of quasi-contract, equity and other cases.87 The judges (helped by Robert Goff, who became a Law Lord) finally accepted at the end of the twentieth century a thesis that they had rejected at the beginning of the century,88 namely that there was a third category within the English law of obligations based on the Roman principle.89 As a Supreme Court judge delivering judgment in a Privy Council case put it recently: It has now become conventional to recognise (see, eg, Benedetti v Sawiris [2013] UKSC 50; [2014] AC 938, para 10 and Investment Trust Companies v Revenue and Customs Comrs [2017] UKSC 29; [2018] AC 275, paras 24, 39-42) that a claim in the law of unjust enrichment has three central elements which the claimant must prove: that the defendant has been enriched, that the enrichment was at the claimant’s expense, and that the enrichment at the claimant’s expense was unjust. If those three elements are established by the claimant, it is then for the defendant to prove that there is a defence.90

Given the subsequent success of the third category thesis, Goff and Jones is now regarded by many specialists in the law of obligations as something of a ‘revolution’. It might therefore be useful to recall the Call for Papers for the Obligations VIII conference: Revolutions in thinking about our governing rules often cause palpable shifts in their foundations: 2016 is the 350th anniversary of Newton’s ‘discovery’ of gravity, and the 100th anniversary of Einstein’s ‘discovery’ of general relativity. It is also the 50th anniversary of the publication of Goff and Jones’ The Law of Restitution, and the 500th anniversary of the publication of Sir Thomas More’s Utopia. What changes mark the most significant paradigm shifts in private law? What effects have they brought? What has provoked them in the past, and what might deliver them in the future? These questions are relevant across the entire sweep of the law, and are common to all jurisdictions. We hope that this theme and its underlying questions

See Goff & Jones (1966). See now Rickett & Grantham (2008). 88 Sinclair v Brougham [1914] AC 398. 89 Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548. 90 Lord Burrows in Samsoondar v Capital Insurance Co Ltd [2020] UKPC 33 at para 18. 86 87

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will provoke serious discussion about the types of issues which unsettle the law, and how we as lawyers help to resolve the ructions.91

Placing Goff and Jones next to Newton and Einstein implies that the law book prompted a paradigm shift that amounted to a revolution in thinking. It certainly helped to shift thinking away from the forms of action approach that might be said to have underpinned the topic of quasi-contract in English law. This domain of the law had traditionally been based upon three main debt claims: the action for money had and received; the action for money paid; and the action for a quantum meruit.92 These common law debt claims were supplemented by various equitable remedies such as tracing and subrogation which might be said to have been designed, at least in part, to prevent unjustified enrichment.93 Nevertheless, the old ‘forms of action’ thinking had not been fully expunged from judicial thinking. In a case in the middle of the twentieth century involving a claim for damages by a local authority who had spent much money in cleaning its beaches of the oil pollution coming from a stranded ship owned by the defendants, the House of Lords were unsympathetic when, having stated the facts, the claimant failed to mention a particular cause of action. Lord Radcliffe said: My Lords, I think that this case ought to be decided in accordance with the pleadings. If it is, I am of opinion, as was the trial judge, that the respondents failed to establish any claim to relief that was valid in law. If it is not, we might do better justice to the respondents – I cannot tell, since the evidence is incomplete – but I am certain that we should do worse justice to the appellants, since in my view they were entitled to conduct the case and confine their evidence in reliance upon the further and better particulars of the statement of claim which had been delivered by the respondents. It seems to me that it is the purpose of such particulars that they should help to define the issues and to indicate to the party who asks for them how much of the range of his possible evidence will be relevant and how much irrelevant to those issues. Proper use of them shortens the hearing and reduces costs. But if an appellate court is to treat reliance upon them as pedantry or mere formalism, I do not see what part they have to play in our trial system.94

The Victorian commissioners might have been amused by this judicial attitude, nearly a century after their earlier reports. It was clear from the facts that the defendants, as owners of the oil tanker, might well be under a direct duty to the claimants. And so the latter, in failing to state this as a specific cause of action, http://​private​-law​-theory​.org/​?p​=​6131. See Samuel (2010), at 301–4. 93 Ibid, at 305–9. 94 Esso Petroleum Ltd v Southport Corporation [1956] AC 218, at 241. 91 92

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were essentially non-suited for failing to fit their facts into the right ‘form’ of action. Yet the point to make here is that the reforms of the nineteenth century, as radical as they were in many ways (as the extracts from the reports above hopefully indicate), did not create a revolution in judicial attitudes. This is not to say that the view of Lord Radcliffe would be followed today; there is now a new procedural philosophy.95 But sudden change in judicial attitudes would not appear to be a characteristic associated with English judicial ‘science’. As for Goff and Jones, it certainly provoked much academic writing on legal classification,96 and, as we have seen, it did influence judicial opinion. Yet whether this can be described as some kind of paradigm shift in the Kuhnian sense – or indeed a ‘sudden change’ – is another question.

6.

REVOLUTIONS IN THE MODERN LAW

If one returns to the nineteenth century, two principal questions thus arise. The first is what provoked change, and the second is whether they amount to a scientific revolution. However, before engaging with these questions one should perhaps return both to the civil law and to the impact, mentioned earlier, of American Realism. The nineteenth century proved equally controversial for the civil law epistemologist Christian Atias (1947–2015). He posed directly the question whether or not law is susceptible to Kuhn’s theory.97 Law, he said, is extremely conservative, and for the most part it is founded on fundamental notions that nobody wants to question. Its progress is limited to resolving difficulties of a type that does not threaten these foundations. Notions such as the state, the (subjective) right, the person, contract, and so on have given rise to multiple and enriching theories, but these theories have never threatened these notions, which are regarded as irreplaceable and inevitable.98 However, there are, he said, certain theory innovations which result in a change of paradigm of a type that ‘nothing is as it was before’. He cites as examples the subjective right (see above Chapter 7, section 9), the state and the consumer, and he asserts that these terms have had repercussions for a good many rules, solutions and legal notions. He goes on also to mention the birth, for example, of a secular and rational natural law (see Chapter 5, section 6). Yet the basic notions, although subject to criticism, remain unalterable.99 Consequently, said Atias, the legal epistemologist explains nothing by talking in terms of Kuhnian ‘normal 97 98 99 95 96

Samuel (2013), at 32–4. See eg Birks (1997). See in particular Atias (1994), at 93–103. See also Atias (1985), at 193–202. Atias (1994), at 94–5. Ibid, at 95.

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science’. One should, then, talk not of paradigms but of anchorage points or knowledge nodes which jurists find too central and too rich ever to abandon.100 Nevertheless, said Atias, none of this means that there have not been ‘revolutions’ in legal thought; he cites the end of the nineteenth century as an example. A group of writers, of which François Gény (1861–1959) was perhaps the most well-known, broke with the jurists who had dominated the French legal mentality since the promulgation of the Code civil in France in 1804. This mentality was one in which the code was seen as the sole source of law and the work of the professors to tease out of this legislative text the answer to any factual problem.101 The new group of jurists argued that the sources of law were more pluralistic and that legal knowledge was not confined to the dogmatic constructions created by the commentators on the code. Gény looked to the social sciences and argued that social life was just as much a source of legal institutions.102 He then attempted to construct a science of law on the social given.103 This work was certainly regarded as ‘revolutionary’ and Atias argued that it prepared the way for the purely scientific view of law developed by Hans Kelsen (1881–1973).104 If there are social sciences – and these social sciences are truly sciences – why can there not be a true science of law?105 As Atias said, one ‘revolution’ (Gény) extended itself into another (Kelsen).106 Yet, were these revolutions in the Kuhn sense of the term? There is no doubt that Gény marked the end of an era107 and that Kelsen marked the beginning of a new one. But Atias is surely right to be sceptical. While it may be true, he said, that the discourse of the French university jurists might reflect the theory changes, it is much more difficult to demonstrate that the everyday reasoning of practitioners was affected. The same is surely true when one examines the impact of American Realism on the common lawyers. A French jurist looking from outside the common law at Realism’s influence has concluded that it has had some lasting effects on American jurists, most notably in installing a feeling that there is more to law than the coherence of a system of concepts and rules.108 The function of these rules and concepts and the concrete consequences of legal decisions and legislation are now so well incorporated into legal knowledge in all the common

102 103 104 105 106 107 108 100 101

Ibid, at 96. See on this point Jestaz & Jamin (2004), at 121–2. Ibid, at 133. Atias (1994), at 99–100. Ibid, at 100–3. Jones (1940), at 223. Atias (1994), at 103. Jestaz & Jamin (2004), at 134. Ibid, at 283–4.

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law jurisdictions that one can perhaps agree with William Twining’s observation, in the 1970s, that ‘we are all Realists now’.109 And one is not just talking of academic lawyers; policy arguments are equally well established in the reasoning of the judiciary.110 There may be a reaction against this realist tendency (see Chapter 9),111 but it is probably too well established to be undermined by any new formalist movement.112 So, has there been a scientific revolution in the common law world? The answer is probably not, since there has long been a policy element to be found in the decisions of English judges and it would be unlikely that a Victorian judge would not be able to have a legal conversation with any present member of the Court of Appeal or Supreme Court.113 Indeed, a Victorian Parliamentary Commissioner examining legal reform would certainly have been able to have a conversation with Lord Radcliffe, even if he found the latter’s attitudes a little dispiriting. What, then, of legal theory? Atias seems to have thought that Hans Kelsen’s pure theory of law might have been something of a revolution, although he also seems uncertain about this. More generally, could, for example, the eclipse of natural law theory by positivism be seen as a revolution? One possible response by the legal historian is to say that legal practitioners have always, since Roman times, applied concepts and rules that were ‘positive’ in form, even if such lawyers occasionally justified certain of the rules by reference to the ius naturale or the ius gentium. In other words, the effects of abstract theorising about law were limited when it came to practitioners and judges since they were concerned with applying only ‘positive’ law (ius positivum) to given facts employing methods that have changed little in two millennia. Take for example this observation of a first instance judge: The function of a judge of first instance is to find the relevant facts and, with the assistance of counsel, to ascertain the law as set out in any relevant statutory provisions and in principles to be derived from the decisions of the House of Lords and the Court of Appeal, and to draw the appropriate legal consequences. It is not open to the judge in performing this primary function to consider, far less express an opinion, as to the correctness of a decision of the Court of Appeal or the House of Lords except in those rare cases where he is faced with conflicting decisions of the Court of Appeal and must choose which to follow. That does not rest solely upon the feelings of deference and respect which a judge of first instance will naturally and properly approach a decision of the Court of Appeal or the House of Lords. An opinion which the judge may entertain as to the correctness or otherwise of, for instance, the interpretation of a decision of the House of Lords by the Court of 111 112 113 109 110

Twining (1973), at 382. Bell (1983). See eg the essays in Roberston & Wu (2009). See in particular Hedley (2009). Waddams (2011).

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Appeal, is simply irrelevant to his primary duty which is to ascertain the statutory provisions and the principles stated in decisions that are binding on him which govern the case before him.114

As for the method, a Law Lord summarised this in the following way: A judicial decision will often be reached by a process of reasoning which can be reduced into a sort of complex syllogism, with the major premise consisting of a pre-existing rule of law (either statutory or judge-made) and with the minor premise consisting of the material facts of the case under immediate consideration. The conclusion is the decision of the case, which may or may not establish new law.115

Presumably a medieval Italian jurist would have little trouble in identifying with this approach (Chapter 5, section 2). Accordingly, the two observations, with some adaption, would no doubt equally reflect the views of many judges in the civil law world. Their job is to ascertain the law (ius positivum), usually through the interpretation of a statutory text (regula), and apply it to the facts before them in a syllogistic manner where possible (even if they fully appreciate that there is much more to reasoning than the syllogism).116 If one returns to Kelsen, whose theory was expounded some time before the observation of the two judges above, it would seem that his vision of law as a pyramid of descending norms could be seen as representing, if nothing else, a ‘paradigm’ shift in the way law was represented.117 As Jones observed, ‘such vertical classifications as those between public and private law, between the law of persons, things and actions, are superseded by the conception of the law as a number of superimposed horizontal planes’.118 By this he meant that the pyramid pattern of norms, when translated into a methodological structure, was to be imagined as consisting of layers. ‘The law’, said Jones, ‘thus forms an unbroken series of steps, rising from the application of a rule by the parties to a legal transaction at one end up to the State constitution at the other’.119 Indeed, this ‘gradation theory is favoured by those who think that it strikes another blow at the traditional distinction between (objective) law and (subjective) rights, by showing the legal process to be a gradually increasing degree of specialization as we move from fundamental principles of the con-

116 117 118 119 114 115

Vinelott J in Derby & Co v Weldon (No.5) [1989] 1 WLR 1244, at 1250. Lord Simon in Lupton v FA & AB [1972] AC 634, at 658–9. Gaudemet (2003). Kelsen (1934). Jones (1940), at 231. Ibid, at 230.

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stitution to the commonest application of rules in individual transactions’.120 Was this a revolution? Is the shift from the Roman institutional system to one of a descending system of norms that are logically exclusive and independent of all other natural and social sciences a paradigm shift? Jones was writing, of course, well before Kuhn. But perhaps a hint of what he might have thought is found when he noted that Kelsen rejected the concept of a law of nature as a logical impossibility and then added: And yet the outcome is merely the transfer to the positive law of the characteristics which were thought to brand the old natural law systems as speculative and metaphysical. Where writers of former days spoke of Nature, Kelsen speaks of logic, meaning by logic some sort of formative principle bound up with the character of law as an independent field of scientific study.121

7.

WHY NO REVOLUTIONS?

Nevertheless, assuming that there has been change, if not revolution, the question remains as to what has provoked these changes. The lengthy extracts from the Victorian Commissioners’ reports (above, section 4) most surely provide an answer to the wholesale procedural change and reform that was to culminate in the establishment of the modern courts system.122 Whether, in the longer run, such changes were to see a radical improvement in the English system of justice is another matter. A century later, the system has had to be looked at once again.123 As for the taxonomical change, this is more difficult since it is by no means clear how and why a shift from the law of actions approach to one based on the Roman regula iuris has benefited legal decision-making. In fact, it is now arguable that the unjust enrichment has done nothing to make the law less complex; indeed, if anything, it has made it more complex and difficult. As Professor Hedley writes: Has the law of restitution and unjust enrichment become too elaborate and technical, too complicated to be useful in the general run of cases? Perhaps it has. For the past 40 years, the dynamo of doctrinal development has been the big public law disputes: first the ‘swaps’ cases, then a succession of issues over taxes wrongly paid. In those mega-cases, with millions at stake on every claim, technicality ruled the roost: no legal point was too small to be taken, every doctrinal avenue could be explored, complexity was what all expected and (to their horror or fascination) all found. Unsurprisingly, the doctrine which has emerged is full of uncertainties, gaps, unresolved questions. Worse: no point emerging from that litigious orgy can be regarded 122 123 120 121

Ibid, at 230–1. Ibid, at 231. See Samuel (2013a), at 17–19. Ibid, at 30–4.

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as absolutely settled, as in that febrile atmosphere it was always possible to argue that earlier precedents were wrongly decided or at least call for reconsideration – as we have now seen in the overruling of the Deutsche Morgan Grenfell case [2006] UKHL 49 in Franked Investment ([2020] UKSC 47). So the current law of unjust enrichment, to those fully aware of its complexities, is a labyrinth of multi-layered and doubtful issues.124

None of this is to say that approaching the problems in these kinds of cases would be any less complex under the previous forms of actions, or remedies, approach. The point to stress is that fiddling with legal taxonomy is hardly likely to be revolutionary. Yet perhaps this is not the right question. Perhaps one should be asking instead why there have not been scientific revolutions and what are the reasons for their absence. The answer surely lies in the discipline of Western law itself; it is its own paradigm and this paradigm, instead of being questioned, has been, and still is, continually being re-affirmed. In other words, law – its notions and concepts organised into an institutional model by Gaius and Justinian – is a ‘vision of the world’ in itself. And this vision has been reaffirmed by the medieval jurists, by the humanists, by the natural law writers, by the codes and by common law jurists such as Blackstone, Lord Radcliffe, Goff and Jones and Birks. Doneau and Domat, for example, may have presented the Roman model in a very different way than Bartolus, but the two Renaissance jurists were both reasserting an institutional (persona, res and actio) paradigm, even if actiones were replaced by obligationes. As has been seen, there have been challenges to the prevailing theories and methods. Dialectical and hermeneutical schemes of intelligibility were challenged by the conceptual structuralism of the school of the mos geometricus and their successors, and this structuralism has in turn been challenged by the functional scheme. Behind these challenges there has usually been an interdisciplinary factor. Philology and the new theories of knowledge (breaking with the tradition inherited from Aristotle and the Church) were what motivated the humanists,125 while the growth of the social sciences in the nineteenth century stimulated the realists.126 But these challenges never really threatened the law-as-paradigm vision of the world.127 In many cases they were simply changes in the schemes of intelligibility or grilles de lecture, a ‘normal science’ process in many of the social sciences.128

126 127 128 124 125

Hedley (2021), at 36. Besnier (1996), at 13–15. Berthelot (2005), at 82–8. Maruotti (2011), at 135–6. Granger (1995), at 87–92.

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In addition to this institutional ‘paradigm’, which was doubtless a characteristic of the continental vision, there was equally a methodological paradigm which attached above all to practitioners. Unlike that of the professor, in the world of the practitioner the focus was on the law attaching to actions rather than to persons or things. It was a world of procedural rules involving the presentation of cases and arguments within a highly technical procedural framework (cf above, section 4). By the fourteenth century Roman-Canonical procedure had already become complex, requiring skilled professional help (otherwise one might ‘muck up his own case’).129 In the law schools this professional training – the formation of the ‘paradigm’ – was acquired through ‘learning exercises’ or disputations.130 Now, what is interesting about these learning exercises is that they also formed the basis of legal education up to the seventeenth century in England. Thus although the forms of action ‘paradigm’ appears at first sight a very different model than the Roman-inspired one, the professional practice paradigm is not at all different.131 ‘What was being taught’, says Baker, ‘was a method, a cast of mind, rather than mere rules’.132 Both in the civil law and the common law tradition, practitioners were being trained in a particular kind of legal method. The forms of action vision of the world may, therefore, appear at first sight as a very different ‘paradigm’ than the institutional one to be found in civilian thinking. Yet this did not matter. What mattered was the law of actions, whose ‘axiomatic’ principles might well have been different from those governing the Roman law of actions, but were just as capable of being reconciled with the thought processes of Domat. The English principles of pleading were just as much a part of legal ‘science’ as anything else in the common law.133 This methodological cast of mind continues today in several respects. First there is, of course, the famous casuistic link between Roman and common law legal method noted by Perelman and others.134 It is this link that no doubt led Peter Birks to assert that Ulpian could sit in the House of Lords (now Supreme Court) without a moment’s preparation. (Surely, if Birks’ view is right, this is proof of the absence of any scientific revolution?)135 Second, although it is often said – with some justification, perhaps – that the methods of contempo-

129 Brundage (2008), at 152. On the Romano-Canonical procedure itself see Brundage at 157–63. 130 Ibid, at 255–6. 131 Baker (2003), at 467–72. Some argue that there is a similar situation within the natural sciences themselves: see eg Granger (1997), at 103­–15. 132 Ibid, at 469. 133 See eg Garde (1841). 134 Perelman (1979). 135 Birks (2004), at 267.

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rary civil lawyers and common lawyers are different, the differences may not be so pronounced the deeper one digs. On the surface a French judgment looks very alien in comparison to a common law one, but when one gets beyond the judgment itself – beyond the ‘official portrait’ – a less alien picture emerges.136 Les rapports often read like a common law judgment and functional arguments are by no means absent.137 Third, all European lawyers use, to a greater or lesser extent, induction and deduction – analysis and synthesis – as reasoning techniques, and so an exercise such as the one to be found in Goff and Jones’ The Law of Restitution (diverse common law and equity cases united by the principle of unjust enrichment) is typical both of jurists and of judges.138 Lord Denning’s attempt to formulate a single uniting principle, with regard to inequality of bargaining power, out of a range of diverse cases may not have been as ultimately successful as Goff and Jones’ exercise, but it displayed exactly the same reasoning technique.139 No one is going to accuse Lord Denning of provoking a scientific revolution. When one considers, then, a book like Goff and Jones’ The Law of Restitution, not only does it not threaten any ‘world view’ or ‘normal science’ but it actually goes a long way to confirm both the institutional paradigm inherited from Roman law (unjust enrichment as an obligations category) and the methodological tradition that acts as the second paradigm. It is, in other words, a work of outstanding conservatism (‘scientifically’ speaking). It confirms the institutional vision of the world and it offers no threat whatsoever to the ‘cast of mind’ or methods of practitioners. Indeed, Gareth Jones himself – quoting frequently from the writings of Lord Goff – defended the traditional ‘black-letter’ or doctrinal approach;140 he defended, in other words, ‘normal science’. None of this is to suggest that the 1966 work was not innovative (relatively speaking). It was an important contribution to the English law of obligations. Moreover, nothing that has been said should be taken as suggesting that Kuhn’s own thesis is beyond criticism. It is not.141 But, on the assumption that Kuhn has a thesis, the idea that The Law of Restitution – as

136 See Lasser (2004). See also Ivainer (1988). And see the recent interview with Koen Lenaerts, President of the EU Court of Justice, in Le Monde, 6 February 2016, Culture et idées, 7. 137 Lasser (2004). 138 Bergel (2012), at 301­–16. 139 Lloyds Bank Ltd v Bundy [1975] QB 326; cf Photo Production Ltd v Securicor [1980] AC 827. 140 Jones (1996). 141 Fekete (2021), at 16. However, it is outside the scope of this book to investigate the problems that Kuhn’s thesis encounters in the world of the philosophy and epistemology of science.

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suggested by the organisers of the Cambridge obligations conference – can be compared with the publications of Newton or Einstein is, at best, far-fetched. Yet perhaps this far-fetched claim ought not to be regarded as any kind of shortcoming with respect to the law book as a law text. The real problem is to be found in the attempt to apply Kuhn’s view of history to the discipline of law. Kuhn’s thesis was developed within the domain of the natural sciences, where, of course, the object of these sciences is ultimately external and independent of the science itself. Theories are for the most part not just open to falsification but subject to the vagaries of empirical reality. As Kuhn has shown, there comes a time when the standard models and theories no longer adequately explain this reality. Law is quite different as a discipline. There never really was a time when a legal theory became either falsified or fully incapable of offering an adequate account of the legal world. For example, positivism might well have eclipsed natural law thinking in more recent times but, as we have already suggested, this had little impact on the methods of practitioners or on the ability of natural law theory to offer a feasible account of law.142 There was, it must be said, a shift from dualism to monism, and such a shift certainly needs to be noted by the legal epistemologist; but this shift might now be going into reverse with the renewed interest in transnational law, and so one might start looking again at some of the older writers. The epistemological conclusion might well be, then, that asking whether there have been scientific revolutions in law is not really an appropriate question.143 Law as a body of knowledge is simply not epistemologically amenable to this kind of interrogation. In short, one is asking the wrong question.

8.

WEAKER KUHN THESIS?

However, this thesis that law as a body of knowledge is not amenable to a Kuhn analysis has been challenged recently. Balázs Fekete does not dismiss the difficulties that Kuhn’s theory encounters when one attempts to apply it to 142 It has been asserted by one critic, an anonymous referee, that Hart’s thesis ‘falsified’ Austin’s command theory. Such an assertion misunderstands both the notion of falsification and the continuing importance of Austin’s theory. It may be that Hart offers a more convincing view of the structure of legal rules, but this does not ‘falsify’ Austin’s theory in the way that an assertion that the dinosaurs were wiped out by a meteorite could be falsified by geological evidence. As Walter Jones observed, it was Austin who was aiming at a ‘pure’ science of law long before Kelsen and it is this metaphysical aspect to Austin’s work that lives on ‘unfalsified’: see Jones (1940), at 95­–7. A jurisprudential theory is validated by consensus rather than by correspondence with regard to the behaviour of a physical external object, and ‘falsification’ through consensus is not the same as falsification through correspondence. 143 See on this point Cheffins (2003), at 504–5.

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the social sciences and to law, but he argues that a weaker or ‘light’ version of Kuhn’s paradigm and revolution approach can be of value in the way that it challenges a linear approach to history.144 In fact, his thesis is not aimed at legal history as such; his book is a work on comparative law epistemology which looks specifically at the history of comparative law. Fekete sees this comparative law history as a matter of changing paradigms, although of course his notion of a paradigm is a lighter one than Kuhn’s and, in the social sciences, is not necessarily exclusive. The social sciences are characterised by different paradigms co-existing with each other.145 ‘This coexistence of different theories and hypotheses in the same field of study’, he writes, ‘implies that there is an extremely limited chance for the emergence of a great and all-inclusive paradigm in a certain discipline, for instance the paradigm of legal scholarship’.146 Given this situation in the social sciences, ‘a paradigm shift cannot be understood as an inflow of completely new academic ideas that are able to reset the settled map of scholarship in substance’.147 There are certain strengths to this lighter version of Kuhn. As Fekete says, ‘with the help of Kuhn, the settled framework of descriptive linearity in legal historiography can be overstepped’.148 As the previous chapters have hopefully shown, the history of Roman law in Europe and beyond – or at least the history of legal notions and concepts that have their origin in the Roman sources – has not been one of descriptive linearity. There have been ‘revolutions’ (in the weak sense) with respect to the methods and schemes of intelligibility brought to bear on the Corpus Iuris and these changes have had quite noticeable effects. The way in which the Roman materials were viewed by the sixteenth-century humanists was considerably different from the way they were perceived by the medieval jurists. There was not just a change of methodological direction but also a shift in epistemological attitude. This is why Donald Kelley was tempted to see humanism in Kuhnian terms, although even he seems to recognise that he was applying a lighter version (see Chapter 10, section 1 above). These different epistemological viewpoints are of course of major importance in the history of legal scholarship. One thinks not just of the humanist re-orientation concerning the status of Roman law but equally of the nominalist revolution that moved legal thinking, in terms of the source of law’s authority, away from a holistic vision (ubi societas ibi ius) towards an individualistic rights approach

Fekete (2021). Ibid, at 24. 146 Ibid. 147 Ibid, at 29. 148 Ibid, at 30. 144 145

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(quod nostrum est).149 These changes can be described as paradigm orientations, provided one is applying a weaker version of Kuhn’s notion. Yet the problem with this lighter version of Kuhn is that these changes of methodology, schemes on intelligibility and paradigm orientations did not amount to scientific revolutions – certainly not in the Kuhnian sense, as we have seen, and not really in any weaker sense either, because the essence of what lawyers did, and do, never really changed. As Professor Bergel has written: [Dialectical reasoning] is used not for scientific demonstrations but for debate and controversy. It consists not in proceeding by rigid deduction from pre-established rules, but under the form of a debate, in employing all means of persuasion and conviction, of criticism and justification of the widest range of possible theories, in order to seek out just probable truths through a reconciliation of as large a number as possible of the different opinions. Dialectical reasoning does not exclude the syllogism. But it is no longer here a question of the analytical syllogism escaping through its form alone any debate and leading to a necessary conclusion. It is a question of ‘the enthymeme’, that is an abridged form of the syllogism in which one of the two premises or the conclusion is impliedly taken for granted. The dialectical syllogism, although it has the same structure as the analytical syllogism, is moreover based on premises which are only probable or plausible. The argument rests, then, more on the validity of such-and-such premise than upon the structure of the reasoning, which is no more than a rigorous formalisation of the passage from various arguments towards a conclusion. It leads generally to a decision; the passage from the premises to the conclusion is not forced: if it was, there would be no choice, and thus no place for a decision.150

Lawyers today are still applying methods that are not dissimilar to those found in the Digest and in the medieval commentaries of the Italian jurists. Even French judges, whose legal mentality has always been considered different from the mentality of common lawyers, are seemingly not so taken with the vision of law as presented by those who write la doctrine.151 Indeed, as has been mentioned, the late Peter Birks thought that Ulpian could function in a UK superior court with little, if any, retraining. But what is more dangerous is that a Kuhnian approach is likely to mask the fact that law has been governed for its whole history by one all-embracing paradigm, namely the authority paradigm (Chapter 2, section 2). This is what sustains law as a discipline, or at least a practical discipline. It is this authority paradigm that has encouraged the rather limited methodologies used in relation to practical legal problem-solving. Law remains, essentially, a discipline in

See Villey (2006). Bergel (2012), at 306. 151 Ivainer (1988); Lasser (2004). 149 150

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which the dialectical tradition continues to be the predominant approach. And it will continue to be so until, perhaps at some future date, there occurs a true Kuhn-like revolution in law. That is when the authority paradigm is finally abandoned. Yet, if this were to happen at a professional level, the discipline of law itself would no longer be sustainable.

11. Is legal knowledge cumulative (or has there been progress in law)? (1) It may be that law has not been subject to paradigm shifts of a revolutionary nature. But has legal knowledge progressed? Do modern-day jurists and lawyers know more about law as a body of knowledge than Roman, medieval and (or) Renaissance jurists? In other words, is legal knowledge cumulative? This chapter and the next one will attempt to provide answers to these questions.

1. INTRODUCTION A collective work by a group of French social science theorists, edited by Bernard Walliser, poses an interesting question.1 Do social scientists know more today than they did in the past? The question is obviously interesting in itself, but for lawyers it is interesting for several reasons, some positive and some negative. The positive reasons are to be found in a series of sub-questions. Do contemporary jurists know more than, say, Ulpian, Bartolus and Domat knew? If so, what do they know that these past lawyers did not know? There is of course more law today than yesterday, in the sense that there has been an ever increasing accumulation of cases, statutes and doctrinal commentaries and works. But is this accumulation of texts equivalent to an accumulation of legal knowledge? If Newton were to be miraculously reincarnated, it is unlikely that he would be able to comprehend much of what is going on in one of today’s advanced physics institutes. Yet if Ulpian, Bartolus and Domat were to be reincarnated, could they not easily – or at least after a short refresher course – once again take up teaching in one of today’s law faculties?2 However, for the purposes of this chapter it might be more useful to put the immediate focus on one of the negative reasons. The collective social science work mentioned above is published en hommage to the late social science

Walliser (2009). One might recall the comment of the late Peter Birks: ‘But Ulpian could sit in the House of Lords tomorrow, without a moment’s preparation…’: Birks (2004), at 267. There are of course real historiographical issues raised by this kind of question, and so it must be treated with much caution. 1 2

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epistemologist Jean-Michel Berthelot (1945–2006), who, inter alia, edited, and made major contributions to, an important and innovative collective work on social science epistemology that was published in France in 2001 (as we have seen: Chapter 2, section 6).3 What might be recalled about this work is that it quite deliberately excluded a contribution from law.4 This, perhaps, was to be regretted, although in some ways it is understandable that social science theorists might not wish to take lawyers seriously when it comes to epistemological reflection.5 Yet this new contribution in memory of Professor Berthelot equally has no chapter devoted to law. One purpose of this chapter is, therefore, simple. It is, evidently, to highlight some of the conclusions reached about cumulativeness in the various social sciences covered in the collection. But more importantly, it is to try to imagine what a contribution from a jurist might look like, had the editor offered space for a chapter on legal studies.

2.

PRELIMINARY DIFFICULTIES

It hardly needs stating that the question whether legal knowledge is cumulative raises a range of very difficult preliminary issues and questions, the first of which concerns legal knowledge itself. What actually is it? The usual modern response is to say that it consists of a body of rules,6 or rules and principles, and even if one accepts this as a working assumption – which the previous chapters suggest that one should not do – it immediately appears to restrict the enquiry to the issue of cumulativeness. If legal knowledge consists simply of knowing rules, or perhaps one might say more abstractly normative propositions, then it would appear that the knowledge is more accumulative than cumulative.7 Scientia iuris would seem to consist of knowing more and more normative propositions. One might argue that ars hemeneutica as a scheme of intelligibility is far more sophisticated than in past centuries, but, do jurists really know more about interpretation of legal texts than they did in the sixteenth century (cf Chapter 4, section 4; Chapter 5, section 3; Chapter 5, section 4)?8 And, even

Berthelot (2001). See Samuel (2008). 5 See eg Siems (2011). 6 Susskind (1987), at 78–9. 7 This distinction between cumulative and accumulative knowledge is admittedly a difficult one inasmuch as the vast body of doctrinal writings and commentaries on law since Roman times would appear to be both accumulative in terms of quantity and cumulative in respect to those that display scholarly quality. This is why the test set out at the very beginning of this chapter is to be regarded as the overriding one: could an Ulpian, Bartolus and (or) Domat function in today’s legal environment? 8 On this point see Ernst (2019), at 142–3. 3 4

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if this is the case, is this the result of progress in legal studies or progress in other disciplines, such as philology and sociology?9 In fact, even if one adheres to the rule model, this hardly exhausts the uncertainties and debates surrounding the nature of legal knowledge, particularly when viewed from the position of the social sciences. One socio-legal theorist denies that there is any concept of law because the apparent concept is based upon the false assumption that law ‘comprises a fundamental category’. The concept of law is, he says, ‘thoroughly a cultural concept, lacking any universal essential nature’, and thus law ‘is whatever we attach the label law to’.10 This is an extreme position, admittedly, and one that that author himself does not in the end fully support. Accordingly, he then suggests there are a number of criteria, which include conceptual coherence and functional value.11 These two criteria have in turn acted as the basis of other socio-legal theories that range, for example, from critical legal studies to systems theory.12 Yet, are socio-legal theories founded upon knowledge that is to be categorised inside or outside law? This is a question to be considered. For the moment all one can say is that there is more to legal knowledge than familiarisation with rules, as even the Romans appear to have realised.13 And so the rule model of legal knowledge probably needs to be abandoned, or at least partly abandoned, as a starting point. Such an abandonment can be used to effect a shift, or more accurately a partial shift, onto the legal mind itself. What are the methods and schemes of intelligibility employed by those involved with legal studies? This question takes one back, of course, to what might be termed the data or object (res) with which the mind (intellectus) engages, and here perhaps a less controversial object than rules might be texts. Lawyers are primarily engaged with textual knowledge.14 What are the reasoning methods, schemes of intelligibility and paradigm orientations employed in respect of these texts?



See on this question Glanert, Mercescu & Samuel (2021). Tamanaha (1997), at 128. 11 Tamanaha (2000), at 285. 12 Ibid, at 302 on the importance of fit in social science theorising and 304–5 on the importance of coherence. On systems theory see Teubner (1993). 13 See Dig 50.17.1. 14 This idea of a ‘text’ can be expanded to include rules, principles, concepts and so on that have not actually been reduced to writing but can be articulated as ‘unwritten’ rules, principles, norms and so on. Much ink has been spilled on what normative texts, written or unwritten (principles, norms), amount to legal texts, and these jurisprudential debates form part of the accumulation of legal commentaries and theories. The question, however, is whether these philosophical writings have increased, in a cumulative sense, knowledge of law. 9

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In focusing on texts one is again faced with the dichotomy between accumulation and cumulativeness, but here the problem is slightly different. For those jurists involved with legal history the discovery of a lost text can reveal new knowledge, as was the case for example with the Institutes of Gaius, a complete copy of which was found in 1816. This permitted lawyers to increase their knowledge of, for example, the old Roman law of actions.15 Yet, is this kind of descriptive knowledge – that is to say, knowing more about the law of actions – actually adding in a cumulative way to the sum total of legal knowledge? Here one can at least turn to the discipline of history, in particular to the chapter in the Walliser collection for enlightenment.16 How do historians view the problem of cumulativeness within their discipline? With difficulty, it would seem, for one cannot apply Popper’s falsification test to any given model since these models refer only to a finite number of specified elements within a specific time and space.17 One cannot even compare the various models between themselves, because the empirical proof relevant to one model cannot be shared with another.18 Nevertheless, these models can be modified and enriched over time and so historians probably can claim not just that they know more about specific areas or topics but also that there is ‘a progress of methods’.19 This reference to history raises another difficult issue in that it serves to remind jurists that it is probably inappropriate to think that there is some kind of unitary legal knowledge. In fact, as Christian Atias has pointed out, there are several different kinds of actor within the legal world, each group employing rather different epistemological frameworks.20 Judges, practitioners, professors and legislators may all be described as lawyers, yet the ‘different categories of jurists do not use exactly the same knowledge’.21 Even at a formal level, legal historians in France are considered to be engaged in an activity that is quite different from that of the private lawyer; the work of the former does not fall within the class of la doctrine.22 In turn, the private lawyer’s activities are Gordon & Robinson (1988), at 10. Revel (2009). 17 Ibid, at 103. Karl Popper’s falsification test, it may be recalled, was formulated by him as a means of determining whether or not an assertion is a scientific statement (as opposed to a non-scientific statement such as ‘God loves man’). A scientific statement is one that is capable of being falsified by empirical experience: Popper (1959 (2002)), at 18. Thus the statement ‘all swans are white’ (Popper’s own example) is a scientific one because it can be falsified by the appearance of a black swan. 18 Revel (2009), at 103. 19 Ibid, at 104. 20 Atias (1994), at 21–8. 21 Ibid, at 21. 22 Jestaz & Jamin (2004), at 171–4. 15 16

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considered formally to be different from those of the public lawyer. John Bell has talked of different legal cultures within the same legal system.23 Might then cumulativeness vary between these different (sub) cultures? If one returns to the legal mind itself, Bernard Walliser himself proposes a conceptual structure for approaching the question of cumulativeness in social science that is founded on three elements, namely data, models and programmes. The data (données) are the ‘information items’ which form the ‘empirical basis of the knowledge’ (le socle empirique du savoir); they are the object (res) to be interpreted by the observer (intellectus).24 Such information items include the documentation to be found in libraries25 and the jurist will, evidently, immediately think of the great mass of legal texts and commentaries that form the basis of the discipline. One difficulty here, as already mentioned, is distinguishing between the accumulation of such texts – for the expansion of law is never-ending – and the accumulation of legal knowledge in the sense of knowing more about law as opposed to knowing more law. There is evidently much more law since Jean Domat’s time (1625­–96), but do lawyers know more about law than Domat? It may be that Domat made errors in his understanding of, say, the Roman law of contract (see Chapter 8, section 8); and, indeed, the humanists identified errors and mistranslations in the work of medieval jurists. Can, then, the identification and correction of such mistakes be seen as progress? Maybe they can. Another difficulty is the relationship between this textual material and social fact. To what extent do the facts of society act as data in the discipline of law (and vice versa)?26 We clearly know more about the physical world and the universe, and such knowledge is cumulative, in that much of it is causal in essence. This permits humans to control aspects of the physical world in ways that they were unable to do in the past because of the lack of knowledge. One may know much more about certain social facts as well, especially since the discovery of the value of statistics. For example, we surely know that certain activities, such as the use of motor vehicles, come with health costs. Indeed, statistics would indicate that road accidents in any one society are predicable, suggesting that having a system of compensation based upon individual behaviour (see the wagons case: Chapter 3, section 5) is no longer a suitable way for the law to react to traffic accidents. Yet English law still insists on approaching the problem in exactly the same way as (seemingly) the Roman lawyers.

25 26 23 24

Bell (2001). Walliser, Avant-propos, in Walliser (2009), at 8. Ibid, at 10. See eg Cotterrell (2016).

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As for models, these ‘are schematic representations of the world made up of dimensions put into relation and constituting the privileged vehicle of knowledge’.27 They are an ‘analytical structure’ which can be more or less explicit depending on the language and formal matrix employed. As we shall see, this expression is particularly suitable for the system of legal thought developed by the Roman jurist Gaius during the second century ad (see Chapter 3, section 3; Chapter 8, section 2). Unlike ‘programme’, which Walliser reserves for certain theoretical and methodological options shared by a community of researchers,28 the idea of a model permits one to understand how law functions both as a conceptual system in itself and as an explanation, or perhaps one should say construction, of social reality itself.29 It is tempting to think that a model, unlike a programme, sits midway between empirical data (social fact) and theory (nature of law itself). But such a view is too simplistic because an understanding of law requires not just an ‘objective’ scheme as to how it represents social reality but also a scheme, or schemes, about how the actors operating within law reason. Moreover, at an even higher level there are paradigm orientations that inject the epistemological validity into the models and schemes of reasoning employed (see Chapter 2).30 There is thus a complexity of data, models, schemes, theories, programmes and paradigms operating at different levels, yet interrelating. And these models and schemes may be not only functioning at different levels but embracing methods and ‘postures’ (to use an expression of Alban Bouvier)31 rooted in other disciplines. There is thus both a vertical and horizontal aspect to a discipline, which makes the assessment of cumulativité within a discipline at best difficult. There may be a cumulative progression at one level (say, for example, legal theory) that has no impact whatsoever at another level (say, the issue of liability of public bodies in tort).

3.

MODELS AND PROGRAMMES

Now, the two notions of the model and the programme may have a respectable conceptual status in French social science thinking, but in legal studies they are not expressions often employed by those interested in the theoretical and philosophical aspects of the discipline. Indeed, in the Anglophone world of social science, the expression ‘paradigm’ is probably more familiar than

29 30 31 27 28

Walliser, Avant-propos, in Walliser (2009), at 8. Ibid, at 9. See Samuel (2003). On which see further Samuel (2014), at 152–72. Bouvier (2009), at 288–91.

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programme.32 Nevertheless, the term ‘programme’, rather than replacing ‘paradigm’, might be a useful complement in that the two notions can be used to express rather different things. One major distinction between disciplines such as law and theology on the one hand and the empirical social sciences, together with some humanities, on the other is, as we have seen (Chapter 2, section 2), that the former are governed by what can be described as the ‘authority’ paradigm while the latter are motivated by an ‘inquiry’ paradigm.33 This distinction is purely epistemological in that it describes the foundational source or orientation of knowledge validity. Thus in legal studies certain texts, in particular statutes and judgments, have an absolute authority. They can be criticised and interpreted but their knowledge authority cannot be questioned. Accordingly, the history of civilian legal thought is primarily a history of a grand livre, namely the Corpus Iuris Civilis,34 and in the common law world the judicial text (in the form of precedents) has, at least since the end of the sixteenth century,35 been one of the main focal points of attention for legal historians.36 Such an authority paradigm does not, however, mean that different ‘programmes’ are not identifiable within the discipline of law. Indeed, in the common law world the twentieth century has seen the flowering of a whole range of theoretical perspectives such as law and economics, gender and the law and law and literature (to name but a few).37 These perspectives might usefully be described as ‘programmes’ within legal studies, thus allowing one to distinguish these perspectives from the more high-level epistemological dichotomies such as those between authority and inquiry (Chapter 2, section 2), holism and individualism (Chapter 2, section 3) and nature and culture.38 As for ‘model’, this is an expression that is certainly employed, in the Anglophone world, in a discipline such as economics. One talks frequently of economic modelling. In legal studies the term is occasionally used in a variety of contexts; for instance, legal philosophers talk of the ‘rule models’ and ‘reasoning models’, public lawyers of the ‘Kelsen model’ and comparative lawyers of different models of procedure. Even legal systems themselves can be analysed in terms of this notion; and so for example two French law professors contrast what they call the French ‘model’ of law with the ‘anti-model’ to be found in the United States.39 They do not use this latter expression in any

34 35 36 37 38 39 32 33

See eg Pheby (1988), at 37–43. See Samuel (2009). See Chapter 3 and Stein (1999). Baker (2003), at 29–30. Lobban (1991), at 82–9. For some surveys see Duxbury (2003) and Bell (2003). These paradigm dichotomies are discussed in Samuel (2014), at 152–72. See Jestaz & Jamin (2004).

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kind of pejorative way; the terms ‘model’ and ‘anti-model’ are employed to emphasise the epistemological differences between doctrinal writing in France and in the common law world. In fact, the notion of a model can be particularly valuable in law in the way, for example, that it more than adequately captures the role of the ‘institutional system’, developed by the Roman jurist Gaius,40 as a mediator between social fact and legal form (Chapter 3, section 3).41 Legal analysis is still conducted within the framework of persons, things and actions (remedies).42 For Bernard Walliser, then, the question of cumulativeness in the social sciences is to be conducted through the three conceptual objects of data (données), models (modèles) and programmes (programmes).43 These three conceptual objects will form the principal framework within which the question of cumulativeness in legal studies will be examined; but, as mentioned, the notion of programme will probably be employed in a more restricted way than that in which it was and is employed by Berthelot and Walliser. Unlike the sciences operating within an inquiry paradigm, where, ideally, epistemological validity is often conferred upon assertions through correspondence with the object or phenomenon studied, law, like theology, is essentially the object of its own science.44 That is to say, it constructs its models without reference – or at least without full reference – to an exterior object.45 In this situation validity of assertions – or at least many assertions – cannot be tested through correspondence; instead appeal has to be made to coherence and (or) consensus.46 Theologians have argued that such modelling is no less valid in that, like mathematics (which also constructs its models and theories without reference to an exterior object), such constructions can still reveal fundamental knowledge about the empirical world and beyond (see Chapter 1, section 3).47 Yet while this is certainly true of mathematics, one has to question the extent to which coherence and consensus – operating within an authority paradigm – are able to provide a sufficiently solid base for the building up of cumulative knowledge.

Stein (1984), at 125–9. On which see Samuel (1997). 42 Ibid. 43 Walliser, Avant-propos, in Walliser (2009), at 8–9. 44 Atias (1985), at 31–42; Atias (2002), at 138–42. 45 See Glanert, Mercescu & Samuel (2021), at 1–30. 46 Soler (2000), at 44–5. Of course, the functional effectiveness of a particular law can often be tested empirically: does a particular law or set of laws have the desired social results? 47 Puddefoot (2007). 40 41

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CUMULATIVE KNOWLEDGE IN THE SOCIAL AND HUMAN SCIENCES

Moving from the preliminary to the central difficulties, one of the conclusions that emerges from the Walliser collection is that there is no universal answer to the question of cumulativeness in the social and human sciences. Different disciplines reveal different results. Not all of the disciplines, it must be said, are represented; and so in addition to the absence of law there are no chapters exclusively devoted, for example, to political science, philosophy and theology. Such absent subjects might be said to present similar epistemological and cumulativeness difficulties as law. Some, perhaps all, of the subjects just mentioned have long histories, and this is something that they share with law; consequently, one can measure developments over more or less two millennia (if not longer). But this long historical tradition in itself provokes the question of whether one should approach cumulativeness from a diachronic or synchronic perspective. And, if the former, does this imply that philosophic, theological and legal knowledge are essentially indistinguishable from the histories of these disciplines? Of course, the very issue of cumulativeness will always involve an examination of the past, for how can one assess the present state of knowledge without reference to past states? But a synchronic approach puts the emphasis not just on the present state of accrued knowledge but also on the methodology currently associated with a particular discipline. And so, for example, one of Jean-Michel Berthelot’s important contributions to social science epistemology was, as we have seen (Chapter 2, section 6), to elevate method above the history of disciplines; his identification of the various schemes of intelligibility allowed sociological method to transcend a chronology of the various schools.48 These schemes are, arguably, fundamental to an understanding of the various epistemological models and theories to be found in the social sciences. However, as Berthelot made clear in his subsequent writings, they do not stand alone.49 They usually interrelate one with another – the causal with the actional, hermeneutics with dialectics, or functionalism with structuralism – and are also embedded in programme or paradigm orientations.50 For example, an actional approach is often associated with methodological individualism51 while structuralism tends to form part of a programme or paradigm that sees

50 51 48 49

See generally Berthelot (1990). See Berthelot (2001b). Berthelot preferred the term programme to paradigm: ibid, at 457–9. See Boudon & Fillieule (2018).

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a society in terms of a whole. Sociology, and indeed other social science disciplines, can be understood, then, as a matter of schematic and programmatic interactions between researchers and their objects and data of research. This is why Berthelot’s work was to impress epistemologists not just in the social sciences but in the natural sciences as well.52 Berthelot, it must be said, was not the only academic to achieve this transcendence; a range of other writers now present disciplines in terms of their methodological plurality, emphasising the importance of paradigm orientations in the appreciation of knowledge itself. For example, Dominic Desjeux (Chapter 2, section 4), in his introductory work to social science, stresses the ‘principle of the method’ and points out that ‘results obtained in one inquiry depend upon the position of the observer, the conditions of observation, the level of observation and the way reality is packaged within a particular given level’.53 This articulation of methodological schemes, programmes and paradigms can legitimately be regarded as a knowledge advance in itself. Yet more importantly, perhaps, it provides another set of references by which one can assess the progression of a discipline through its history. For example, the late epistemologist Robert Blanché, as we have seen (Chapter 10, section 2), asserted that all the sciences pass through four stages in their diachronic development; they begin with the descriptive and end in the axiomatic, having passed through an inductive and a deductive stage between these two poles.54 What is valuable about this historical model is that it permits one to assess a discipline in terms of its methodological developments and to measure these developments with the accumulation of material, if not knowledge, within disciplines. Thus it may turn out to be difficult to apply the Blanché framework to a number of social science areas, and one reason for this might be a plurality of methods, schemes and paradigms at any one time or stage in the discipline’s history. Induction and axiomatisation may simply exist at the same time as two different methodologies; or, put another way, the casuistic and axiomatic approaches do not necessarily occur at different eras but may be part of an ongoing debate in the sciences and social sciences.55 Another problem, of course, is that a range of social and human science disciplines do not have long enough histories to permit any assessment by way of the Blanché scheme. However, with respect to certain other disciplines, such as law (or more precisely the civil law) and theology, the Blanché framework seems to apply with much more force, perhaps because of these disciplines’ long histories and

54 55 52 53

Granger (1995), at 90–2. Desjeux (2004), at 5. Blanché (1983), at 65. Passeron & Revel (2005); Jonsen & Toulmin (1988).

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perhaps because of the nature of the object upon which the discipline functions. Accordingly, it is possible to identify a progression from a descriptive stage (say, the Twelve Tables of Roman law), to an inductive stage (classical Roman law and medieval Roman law) (Chapters 3–4 and Chapter 5, sections 1 and 2), the humanist revolution then marking the beginning of a deductive stage (particularly with jurists such as Doneau) (Chapter 5, section 5) which finally gave way, with the Pandectists, to an axiomatic mentality (Chapter 5, section 7). Theology follows, at least to some extent, a similar pattern.56 The common law, of course, does not fit this scheme, since it appears to have remained stranded in an inductive stage, attempts at deduction and axiomatisation having largely proved fruitless (Chapter 5, section 9).57 But perhaps the common law tradition is the exception that proves the rule. The lack, before the nineteenth century, of university faculties teaching the common law has meant that the accumulation of knowledge, as opposed to authoritative texts, was destined to be inhibited. It is only now that English academic lawyers are trying to advance an internalised legal thinking and attempting to provide a model from which a person’s rights and duties can be inferred with an enhanced certainty (Chapter 9).

5.

EXPLANATION (CAUSATION) AND UNDERSTANDING (HERMENEUTICS)

Another methodological issue that impacts upon the question of cumulativeness in the social sciences is the distinction between explaining something and understanding something. The distinction can be expressed in a number of ways. It can, first of all, be seen as the methodological difference between the natural and the human sciences; the natural sciences explain the phenomena that occur in the natural world whereas the human sciences offer a means of comprehending life through psychological and historical processes.58 A second possibility is to be found in the notion of liberty. In the natural sciences such a notion is meaningless and thus natural phenomena can be explained entirely in terms of causality. Human behaviour and acts are, in contrast, part and parcel of human liberty and thus causal explanations are not possible, save perhaps in the most general terms – and even then they are open to dispute. In fact, even these causal explanations are dependent upon an understanding of what are and are not significant historical events. In the natural sciences, then, one observes objects that are independent of the observer, whereas in the social sciences one is always observing objects which

See eg Bedouelle (2007), at 54–104; Riaudel (2007). Gray & Gray (2003). 58 Makkreel (2006), at 441. 56 57

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cannot be fully separated from the observer because it is a matter of phenomena that originates within human consciousness itself.59 A third means of appreciating the distinction is through a practical example given by Jean-Michel Berthelot. One sometimes finds by the side of mountain pathways a small pile of stones in the shape of a pyramid. Now, says Berthelot, there are two principal ways in which a person can reflect upon this phenomenon, the first being framed in terms of causality. How did this phenomenon – these stones – get there? What is the causal explanation? Here one might have recourse to the laws of physics leading to a reflection upon this phenomenon according to the principles of erosion, weather, mineralogy and so on.60 Such an approach involves the application of known laws and the methodological model is deductive. A second question, however, is different: what do these stones mean? What they mean, says Berthelot, is that the mountain path is safe; but the point here is that this question of what the stones signify involves recourse to the notion of human intentionality. The phenomenon ‘is a sign which refers to another mode of thinking: the understanding of its sense’.61 This mode of thinking is a matter not of explanation but of comprehension. And this ‘opposition between explanation and understanding, causes and sense, sciences of nature and sciences of the spirit, structure in a large part the epistemological debate in human and social sciences since the beginning of the [twentieth] century’.62 Berthelot makes the point, then, that the distinction between explanation and understanding is not just something that separates the natural and the social sciences. It is a dichotomy that operates within the human and social sciences in as much as these latter have, since the beginning of the twentieth century, been particularly attracted by positivism, which has as its major traits experimentalism, objectivism and reductionism.63 The cost of the emancipation from metaphysics has been the adoption of a scientism that has put the emphasis on facts and applied to these facts the language of the natural sciences. The search has been for scientific laws and propositions that can ultimately be applied through deductive methods. As Berthelot makes clear, this search has not proved fruitless as such – indeed, there has been a huge methodological gain – and thus it would be a mistake to think that social scientists have abandoned causal models that explain social phenomena. Yet the Vienna Circle’s emphasis on the nature of scientific linguistic propositions has created

Ibid. Berthelot (2006), at 380. 61 Ibid. 62 Ibid. 63 Ibid, at 379. 59 60

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a division between those propositions that can be verified or falsified and those propositions that cannot.64 It might seem that such an apparently clear dichotomy should create within the human and social sciences an equally clear distinction between scientific and non-scientific statements. However, the position is not so clear-cut, for a number of reasons. The first is that the idea of causality itself is by no means well defined within the social sciences. When a historian classifies a specific uprising as a ‘bourgeois revolution’, is the historian producing a cause or a concept in need of interpretation?65 When one talks of the Protestant ethic as being a crucial factor in the evolution of capitalism, is one formulating and applying a causal law in the natural science sense?66 The second reason is that programme or paradigm orientations exert a fundamental influence in that the factors and elements upon which one focuses when formulating causal propositions in the human and social sciences depend upon the level at which the observer is operating. The view of Dominic Desjeux can be recalled here (Chapter 2, section 4): when the level of view changes the reality that one observes, the facts equally change as well.67 Causality and interpretation, or explanation and comprehension, are, in other words, intermixed in subjects like history. A third reason is that alongside cause, the notion of reason has a central role in the social and human sciences. Thus, to repeat an example given by a French social theorist, the statement that X has run over Y in his car because he was under the influence of alcohol is a causal assertion whereas the statement that X has run over Y because Y was X’s wife’s lover is an assertion about reasons.68 Cause and reason become intermixed in the human and social sciences because intentionality and teleology are fundamental elements in the analysis of human behaviour. As a result of these difficulties and ambiguities, the epistemology of the human and social sciences is no longer characterised by a single model but by a plurality. Now, as Berthelot has observed, the plurality of the various epistemological oppositions – oppositions such as those between explanation and understanding, causes and reasons and structure and history – do not actually provide a means of simplification and clarification. Rather, they act as a source of complexity, which means that within each social science there is a conflict both between schemes of intelligibility and between modes of legitimacy.69 Ibid. Cf Makkreel (2006), at 442. 66 Ibid. 67 Desjeux (2004), at 107. 68 Ogien (2006a), at 1052. 69 Berthelot (2006), at 380. 64 65

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The causal scheme, which characterises the natural sciences (explanation), is claimed as the sole and valid method by one group, while the hermeneutical scheme (understanding) is seen as the only viable approach by another group. Each position tends to invalidate the other.70 And so, for example, when the positivists assert this or that explanation in the form of a linguistic proposition – a text – the other group can assert that what is in issue is nothing but the text. Why should a ‘scientific’ text be any less constructive of what it is attempting to describe than a work of fiction? This question raises, of course, a distinction between what might be described as objective data and the text that discusses and analyses such data. Where is the epistemological source ultimately to be located: in the data or in the assertions and constructions to be found in the text? In the natural sciences, although there is recognition that such facts are always mediated through a constructed model,71 the dominant idea is still that there are natural phenomena beyond, and independent of, both the text and human mind. Epistemological validity is thus, normally, a matter of correspondence with this external object. Indeed, as we have seen, according to Karl Popper a proposition is scientific only if it can be falsified, that is to say, shown not to conform to this external reality (Chapter 1, section 3).72 How scientists perceive such reality no doubt changes as the models change, but one is always striving to produce models that best represent this reality. Thus ‘reality exists but we cannot have access to it outside of our scientific constructions and theories’.73 In the social sciences, however, the position is more complex. Are there objective social facts that can be explained in terms of a causal scheme of intelligibility?74 If there are, the idea of cumulativeness, in the natural science sense at least, becomes a possibility. If there are not, then it would appear that there are only the models and theories.

6.

VERTICAL AND HORIZONTAL MOVEMENTS

In fact, for a number of social science disciplines, such as geography, sociology and history, there is certainly an important data foundation. However, what has changed is the way this data is perceived. At the beginning of the twentieth century the emphasis was on the logical analysis between the observable data and the scientific theories; that is to say, the governing paradigm was synchronic. With Bachelard and Kuhn this paradigm gave way to a diachronic Ibid. Granger (1995), at 70. 72 On which see Boyer (2006a), at 954–5. 73 Tiercelin (2006) at 939. 74 Ogien (2006), at 964. 70 71

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approach where the emphasis shifted to the historical processes by which the internal architecture of scientific disciplines was gradually constructed.75 One might label this kind of movement as vertical. As Robert Blanché expressed it, history ‘offers a good means of analysis in separating, by the date and by the circumstances of their appearance, the various elements which have contributed to form little by little the notions and principles of [a] science’.76 Viewed from this vertical position, the question of cumulativeness in a human science such as geography is one of consolidation of its models and concepts over time. It is a question of ‘conceptual enrichment’.77 However, this enrichment also involves what might be described as horizontal movements, that is to say, movements between disciplines and between levels of operation. Thus, according to Alban Bouvier, in sociology the problem is not so much a plurality of programmes, theories and models. What needs to be appreciated – and not just for the social sciences but also for the natural sciences – is that it is the level of analysis and the passerelles between these different levels that must be identified, for there are different research programmes for different levels.78 Two important ideas, then, are the programmes de niveau and the programmes passerelles. Now, the existence of these different levels of research programmes constitutes the logical structure or architecture of sociology (and of other disciplines) and while this might seem a trivial observation, says Bouvier,79 it is fundamental to the understanding of the knowledge emerging from a subject like sociology. The results obtained at one level integrate themselves only with difficulty with those obtained at another level, with the consequence that these different levels of knowledge integrate themselves, in turn, into the overall structure of the discipline only with difficulty.80 These different levels integrate with difficulty because there are paradigm conflicts. Those working at a macro level may well be functioning within a ‘holistic’ paradigm while those researching at the micro-level could be operating within an ‘individualistic’ paradigm (cf Chapter 2, section 3). Of course, says Bouvier, these different paradigm orientations are not necessarily incompatible, but they have been presented historically as such, with the result that it has weakened the idea of cumulativeness within the discipline.81 This kind of fragmentation seems evident in anthropology as well. Gérard Lenclud argues that there are no general theories in anthropology. Instead there are 77 78 79 80 81 75 76

Bouvier (2009), at 302 n 68. Blanché (1983), at 36. Pumain (2009), at 179. Bouvier (2009), at 302. Ibid, at 306. Ibid, at 310. Ibid, at 313.

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various methods, such as functionalism and structuralism, but these methods – and this is why they are not theories – never result in confrontation within the discipline.82 For this possibility of confrontation is what elevates a method or scheme of intelligibility into a theory. The result is that cumulativeness is to be found only at the micro-level. ‘Ethnographical facts are too constructed and according to models too idiosyncratic’, concludes Lenclud, ‘to render them comparable in space and also in time’.83 Instead there exist micro-theories about a particular phenomenon in a particular society and ‘it is at the level of these micro-theories, proposing models for description, that little zones of cumulativeness can be detected’.84 A similar situation is to be found, says Jacques Revel, in history.85 In fact, as we have seen (Chapter 1, section 5), Lenclud does not stop at the lack of theories in anthropology: he also argues – interestingly – that there are no real paradigms. And there are no paradigms, he says, because there has never been any ‘scientific revolutions’.86 In order that one paradigm can be identified, there must be another that follows and replaces it.87 There might be different schools, such as the American and the British schools, and these schools might have their different approaches, such as here cultural and there social. But these differences are of quite a different order than the kind of paradigm revolutions experienced in the natural sciences, where (referring to a famous visual illusion) what is a duck one day becomes a rabbit the next.88 ‘Anthropology, like history or sociology’, Lenclud concludes (and as we noted in Chapter 1, section 5), ‘is destined to remain pre-paradigmatic or, in the language of Michel Foucault, to rest on the threshold of positivism, achieved at the end of the 19th century, perhaps to brush against the threshold of epistemologicalisation without ever approaching the threshold of scientificness, even less formalisation’.89 So how does knowledge in such a situation ‘advance’? Another horizontal possibility is for one discipline to look towards another. Thus in geography, for example, the borrowings from other social sciences have been very numerous90 and this has, according to Pumain, helped create what he calls a cumulativité spiralaire through the successive reformulations and enrichment of anterior

Lenclud (2009), at 352–7. Ibid, at 356. 84 Ibid, at 357. 85 Revel (2009), at 108–9. 86 Lenclud (2009), at 359. 87 Ibid, at 360. 88 Ibid. 89 Ibid. See also Bouvier (2009), at 293. 90 Pumain (2009), at 182. 82 83

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notions.91 These borrowings are not one-way, for geography has equally exported knowledge and so the question of cumulativeness should be viewed, asserts Pumain, not just in terms of the single discipline of geography but in terms of the social sciences in general.92 It is, however, difficult to assess the extent to which such interdisciplinary approaches are able to contribute to the accumulation of knowledge (in the sense of knowing more) at this more general level, given the conclusions that have been reached by other contributors such as Bouvier and Lenclud. In fact, Lenclud argued in a contribution to a previous collection on the nature of disciplines that an ever increasing interdisciplinary approach can lead to fragmentation within the discipline that is importing such knowledge.93 Such fragmentation can undermine the consensus necessary to maintain the epistemological validity of a discipline.94 The importation of knowledge might, then, create a sense of ‘crisis’ among those members of a discipline keen to preserve their knowledge domain. As we shall see, this is a fear that has manifested itself, and continues to manifest itself, in law (see also Chapter 9). Yet the interdisciplinary problem – if problem it is – is much more complex than it might at first seem because these kind of horizontal imports and exports are happening, and have always happened, to some extent. Notions such as ‘positivism’ and ‘paradigm’ are of course imports from other knowledge domains, and reasoning methods such induction, deduction and analogy are the property of no single discipline. In fact, the whole notion of a ‘discipline’ in the social and human sciences is fraught with a number of difficulties both from a diachronic and from a synchronic orientation. Do they represent distinctions actually to be found at a material (res) level or are disciplines the result purely of mental (intellectus) compartmentalisation? Perhaps this question is less relevant than it might at first seem, inasmuch as it misses the point of a discipline. ‘It is indispensable’, write Francis Affergan and Bernard Valade, ‘that a knowledge area is founded upon a history which is sufficiently long for the categories and methods to have had the time legitimately impose themselves’.95 A discipline is a paradigm or a programme in itself that has the capacity to develop both in terms of movements between levels – vertical movements – and in terms of movements of frontiers – horizontal movements. And so, referring to Karl Popper, Affergan and Valade make the point that a subject such as anthropology might not be fragmenting as such but rather expanding into a universal science, with the result that it is sociology that is becoming a mere compartment, that is, 93 94 95 91 92

Ibid, at 196. Ibid, at 197. Lenclud (2006). Ibid, at 90–3. Affergan & Valade (2006), at 283.

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one that has as its object only industrial society.96 The test for a discipline, accordingly, is whether or not it has the capacity to contribute to the progression and development of knowledge at a level above and beyond the discipline itself. If this is the test, then the absence of law in the Walliser (and earlier in the Berthelot) collection ought to be a matter of concern. Has the discipline of law – one of the oldest in Western university history – nothing to contribute to the accumulation of social science knowledge?

7.

LEGAL HUMANISM AND ITS CONTRIBUTION

One of the ironies, perhaps, of the Berthelot collection on social science epistemology is that the chapter on history, written by Jacques Revel, refers to Donald Kelley’s question set out in the introduction to his work on Renaissance French jurists, namely: ‘What is history?’ (Chapter 2, section 8).97 This is ironic because, bearing in mind that law has been excluded from the collection, one finds a non-lawyer in the collection referring to a historian who is in fact a historian who has specialised in European legal history. Now, what interests Revel is Kelley’s response that the ‘what is history’ question ‘has usually been asked by the wrong people’.98 It has, says Kelley, been asked by philosophers, by social scientists, by theologians and even, occasionally, by historians, ‘but normally as an opportunity for self-justification or autobiography’. It has almost ‘never been asked with much respect for a historical point of view’. And so in ‘order to understand what history is, we must first ask: What has history been?’99 Kelley’s work is accordingly important because, first, if the ‘what is history’ question can only be answered by posing the question of what it has been then one can, by way of analogy, argue that the ‘what is law’ question can properly be answered only by asking what has law been. A diachronic approach – historical jurisprudence – would thus appear essential not just because the whole issue of cumulativeness in law is history-dependent but also because one cannot get a sense of what law is without asking what is has been. However, it is not just a question of analogy because, as Kelley’s work on the French humanists shows, in the sixteenth century the two disciplines became interrelated. Indeed, they became interrelated through the mediation of a third discipline, that of philology. The ‘humanists established a new logos upon the assumption that language reproduced, if it did not actually create, the

Ibid. Revel (2001), at 25. 98 Kelley (1970), at 2. 99 Ibid. 96 97

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configurations of reality’.100 Kelley makes the important point that Roman law was central to the humanist project in that it represented ‘the most impressive system of practical philosophy achieved by any society’, and moreover ‘the parallels between law and language were striking’.101 Law was a kind of ‘linguistic science’.102 Yet while these generalities might have been motivating principles, they were not in fact the stimulus that provoked the humanists into developing – and this is Kelly’s thesis – modern historical methods. What provoked the humanists into developing serious historical methodology through the use of philology was the huge text of Roman law itself, the Corpus Iuris Civilis (see Chapter 3, section 1). The commissioners who compiled the Digest were authorised to amend the texts so that they represented the current state of the law. The problem for the humanist jurists, who were dedicated to recovering what they considered the pure Roman law of the classical period, was that there was no indication in the Digest itself as to where such ‘interpolations’ had been made.103 Moreover, these Roman texts had, for the humanists, undergone further ‘corruption’ in the centuries that followed Justinian. In fact, worse, they had then been subjected in the late medieval period – the periods of the Glossators and Post-Glossators – to intense analysis and commentary by ‘philistines’ such as Accursius and Bartolus.104 Consequently, the humanist jurists had to develop philological and historical methods to try to identify the true ‘fathers of jurisprudence’.105 They had to devise a method to cut through the quite vast accumulations of commentary and interpretation that Roman texts had attracted.106 Ibid, at 24. Ibid, at 39. 102 Ibid, at 40. 103 As Kelley (1970), at 40, puts it: ‘Like the Latin language, Roman law had undergone a long process of corruption and displacement.’ 104 Ibid, at 41. One should, however, recall here Desjeux’s point about the level of observation, mentioned earlier in this chapter. There is no doubt at a higher level of abstraction that the sixteenth-century humanist jurists (mos Gallicus) represented a break with the older medieval approach to law known as the ‘Italian method’ (mos Italicus). The humanists, for example, started the process of reorganising Roman law in a more systematic way (see chapter 5, section 5). However, Ian Maclean has shown that at a lower level of abstraction, namely the doctrinal works devoted to interpretation, the position appears different in that it is much harder to discern any clear break between the Post-Glossators and the humanist jurists: see Maclean (1992). Different levels of observation reveal different kinds of knowledge. 105 Kelley (1970), at 40. 106 It would of course be no wiser to claim that the enormous volume of glosses and commentaries on the Roman texts were somehow irrelevant to the humanist project than it would be sensible to claim that Newton was irrelevant to twentieth-century phys100 101

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This whole humanist undertaking by jurists steeped in interdisciplinary learning resulted, argues Kelley, in an enormous contribution to the human and social sciences. The humanist jurists ‘provided a “historical” method and certain concepts, such as those of style and anachronism, essential for the interpretation of cultural history’. More importantly, they ‘created a scholarly tradition which preserved and elaborated these ideas and passed them on to modern scholarship’.107 Perhaps, then, it is to be regretted that Revel does not allude to Kelley’s contribution to the accumulation of knowledge in the social sciences. In the Berthelot collection he had referred to Kelley’s grand livre as dealing with ‘the construction of a historical science in the Renaissance’108 and one might speculate about the status of this construction. Revel might argue that the humanist jurists were focusing their attention almost exclusively on texts whereas the fundamental preoccupation of the epistemology of history, as it relates to the question of cumulativeness, is to account for progress in respect to the accumulation of data.109 What have the jurists got to offer here?110 Actually, the humanists might have something to offer, inasmuch as the quest for interpolations was only one part of their scholarship. This brings us to the second important aspect of Kelley’s work, namely his much broader survey of the importance of legal thought to social thought in the Western tradition.111 What emerges from this broader view is that there was another side to the French humanist scholarship that emphasised, as we have seen (Chapter icists. The obvious question is the extent to which the commentaries of the medieval jurists contributed to legal knowledge. Certainly their interpretations and applications of the texts resulted in an accumulation of authoritative material and their distinctions, inductions, definitions and regulae added to the conceptual structure of law. Indeed Harold Berman argued, as we saw in Chapter 10, that there was a scientific revolution in the twelfth century. ‘The Western jurists’, he says, ‘applied a new dialectical method to the Roman texts’ and they ‘were thus able to draw from these texts conceptual implications which the Romans themselves never dreamed of – a theory of contract law, a concept of rights of possession, elaborate doctrines defining justifications for the use of force, and the like’. And he continues: ‘They taught the West to synthesize cases into rules, rules into principles, principles into system’: Berman (1983), at 529. This is, surely, an overstatement? There is plenty of evidence in the Corpus Iuris itself of Roman jurists synthesising cases into principles (see eg D.9.2.31) and principles into system (the institutiones). 107 Kelley (1970), at 302. 108 Revel (2001), at 25. 109 Ibid, at 44–52. 110 The notion of a ‘legal fact’ is examined from an epistemological viewpoint in Samuel (2003). Yet nothing in this work really tackles the issue of the accumulation of factual data within the discipline of law. For example, does a slow but continuous accumulation of cases dealing with factual causation increase one’s knowledge of cause in fact? 111 Kelley (1990).

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5, section 5), law as a scientific – or ‘philosophical’ – endeavour.112 This other humanist orientation was equally rooted in classical Roman law in that the Corpus Iuris indicated that it was Gaius who had provided what Peter Stein has called the great ‘institutional plan’ that underpins the idea of a science of private law even today (see Chapter 3, section 2 and Chapter 8, section 2).113 Gaius had devised a plan which encapsulated the whole of law as an interrelating system; it was based on the three key elements of persona, res and actio which, in turn, gave rise to the three fundamental legal categories of the law of persons, things and actions (Chapter 8, sections 3–5).114 Donald Kelley thinks that this system was for social thought what mathematics was to the natural sciences;115 it was ‘the epistemological foundation of Nomos’.116 Indeed, the late Peter Birks has taken this analogy further and claimed that Gaius has provided the basic ‘software’ for all legal thought.117 Whatever the situation, there is no doubt that Gaius’ plan was a major advance in legal thought. For in framing all law around ‘person’, ‘thing’ and ‘action’, Gaius had devised a scheme that acted both as a means for classifying and organising law and as a means of organising social reality. People and things – and indeed actions – are empirical focal points for sociologists and conceptual focal points for lawyers and thus the scheme is the means by which jurists can function at one and the same time in the worlds of law and social fact. ‘This fundamental classification’, says Kelley, ‘entailed not only moral priorities and a means of ordering reality but also a characteristic mode of perceiving, of construing, and potentially of controlling the social field’.118 The immediate contribution made by the humanist legal science to this scheme was to banish the category of actions to the realm of procedure and to elevate a sub-category identified by Gaius within the law of things to take its place (Chapter 5, section 5). Modern codes, therefore, are based on the three elements of person, property and obligation. However, the humanists did more than just tinker with the elements. As has been indicated, they set law along a new epistemological route in replacing the authority of the text, which was the basis of medieval legal knowledge, with the authority of rationalism. Placing an emphasis on Justinian’s Institutes and on the final book in the Digest devoted to abstract legal maxims (de regulis juris),119 the humanists

Ibid, at 196–9. Stein (1984), at 125–9. 114 See G.I.8. 115 Kelley (1990), at 12. 116 Ibid, at 9. 117 Birks (2000), at xliv. 118 Kelley (1990), at 49. 119 Dig.50.17. 112 113

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re-orientated legal thought away from the casuistic methods of the medieval jurists120 towards one of deduction from abstracted rules. In other words, they set the scene for the subsequent schools of civilian legal thought, whose epistemological foundation was mathematical structuralism based upon the search for an ever more coherent model. The mos Italicus was beginning to give way to a mos geometricus (Chapter 5, section 6). From a cumulativeness point of view this does not, admittedly, look like progress in the accumulation of social data. After the humanists, as Sir Henry Maine observed, reform of the law meant reform of the textbooks.121 And so it seems much more a development in the refining of models founded on the assumption that it was ever more coherence that would provide the ultimate epistemological validity.122 However, as Kelley implies, the institutional system, together with all the other legal concepts that were ultimately grounded in this system, was not just a way of classifying law. It was also a way of viewing – of constructing – society itself and thus provided not just an ideological model (a point that was continually stressed, with respect to the late Middle Ages, by another jurist and historian Walter Ullmann) (Chapter 8, section 6)123 but an ontological basis for understanding social analysis.124 The elements of society were personae, res and obligationes, and when these elements were viewed from the position of the individual – who had been brought to prominence as a result of the ‘nominalist revolution’ – one had a social theory based on the concept of a ius.125 This concept, with nominalism, was seen by the time of the humanists as a ‘right’ rather than legal relation (Chapter 7, section 9). Legal thought was providing a social, political and (with concepts such as ‘contract’ and ‘interest’) economic model which explained the empirical social data found both in the Digest and in sixteenth-century societies.126

On which see Thomas (2011), at 207–37. Maine (1890), at 363. 122 The sixteenth-century jurist Hugues Doneau can certainly be credited with taking the Gaian system of persons, things and actions to what might be considered by many a higher level of sophistication. As has been mentioned (see Chapter 8), Gaius had certainly distinguished between property and obligations, but mainly at the level of the law of actions; he emphasised the distinction between an actio in rem and an actio in personam (G.IV.1-3). Doneau recast this from the position of the subjective right, distinguishing between two categories of things: those that are ours and those that are owed to us (quod propre nostrum est, quod nobis debetur) (see chapter 5, section 5). However, both the idea of a ius in rem (see eg D.4.2.13) and that of a substantive distinction between property and obligations (D.44.7.3pr) are to be found in Roman law itself. 123 See eg Ullmann (1975a), at 46–7. 124 Kelley (1990), at 8–9, 48–52, 60. 125 Ibid, at 60–1. 126 Ibid, at 64–6. 120 121

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This model was eclipsed only when new disciplines such as sociology came to dominate social thinking, although Professor Murphy’s view that the rise of statistics destroyed the old legal vision must surely not be dismissed either.127 What progress there had been was eclipsed by new disciplines.

8.

LEGAL EVOLUTION

Looking back on the impact of humanism, what might one say about this shift of emphasis from the authority of the Roman texts as text to the authority of classical Roman law as coherent and rational system? Certainly, if Kelley is to be believed,128 the shift contributed immensely to social and human science in general in the way that it engendered modern historical methods. But what of law itself? Standing outside the discipline, so to speak – from the position of epistemology in general – one might, following Blanché (Chapter 10, section 2; this chapter, section 4 above), note the shift of scientific stage from the inductive to the deductive.129 And from the nineteenth-century viewpoint this indeed looked like progress. ‘Nineteenth-century legal thinkers’, observed Peter Stein, ‘seeking a theory that explained legal change otherwise than simply as the enactment of reform by the legislator, tried to be scientific, and a scientific inquiry was an historical inquiry’.130 As Stein goes on to say, this historical method was at that time synonymous with evolution, with progress. One difficulty here, of course, was the common law which had not ‘progressed’ in the same way; it had, as Villey noted, been spared the effects of the humanist movement.131 However, in his famous work Ancient Law Sir Henry Maine seemed to get around this difficulty by recourse to analogy.132 Using the concepts of fiction, equity and legislation (regarded in its wider sense of law-making, even by judges), Maine indicated that both Roman and English society were progressive.133 They passed through similar stages. In early societies law is primarily a matter of status, where the family is the primary unit and members are subject to the power of the paterfamilias. But, gradually, this Murphy (1997). But cf Maclean (1992). One might note also that it is not being suggested that there was some kind of sudden and complete change from one type of authority (textual) to another type (coherence and system). Textual authority remains even today an important epistemological foundation for legal reasoning and analysis. 129 Blanché (1983), at 65. 130 Stein (1980), at x (Preface). 131 Villey (2006), at 612. 132 On Maine, Ancient Law and its aftermath see Stein (1980), at 86–115. And see generally Cocks (1988). 133 Stein (1980), at 94. 127 128

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family dependency begins to break down, to be replaced by the growth of the individual and legal obligations between individuals. Thus ‘we may say that the movement of progressive societies has hitherto been a movement from Status to Contract’.134 If one ignores, then, the later civil law and focuses just on Roman law and on the common law, the two systems seem to share many developmental and methodological similarities. Indeed, said a German Roman law specialist, they share an ‘inner relationship’.135 Nevertheless Maine was not suggesting that the common law was somehow equal to the later civil law in terms of rationality and coherence. What English law needed was codification,136 and of course codification had been what might be regarded as the axiomatic stage of legal science.137 In fact what seemed to happen, as Steve Hedley asserts, was that the new law faculties did for the common law that which codification did for the civil law.138 They moved the common law from being a mass of remedies largely categorised using the alphabet to a rationalised system of rights and duties classified (at least to some extent) according to the Institutes of Justinian.139 The new law faculties assumed that law was a science, and of course ‘Maine inherited a traditional view of long standing that associated general legal theory with Roman law’.140 Peter Birks certainly regarded this adoption of Roman law categories as progress since, for him, no ‘science can progress without taxonomy and taxonomic debate’.141 But Birks did not stop there. In many ways he resumed the Maine position of examining the common law in relation to Roman law and made the point that even Roman law, like the common law, managed to build itself up without the help of the institutional system. ‘Both systems “managed”, or struggled towards maturity’, he said; but the ‘crucial question was and is how to stabilize the structure when that crude scaffolding [namely a list of forms of action] has failed’.142 It is rash and anti-rationalist, continued Birks, to think that the common law is somehow different and does not need a system like that of the Institutes.143

134 There were many editions of Ancient Law (first published 1861), but this famous quote is to be found at the end of Chapter V. See generally Stein (1980), at 94–7. 135 Pringsheim (1935). 136 Jones (1940), at 59. 137 Blanché (1973), at 219–20. 138 Hedley (1999). 139 Birks (1997a). 140 Stein (1980), at 123. 141 Birks (1997), at v. 142 Ibid. 143 But cf Waddams (2003), at 9–10.

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Legal Evolution might, then, be dead as a particular historical movement (that is to say, it did not long survive the end of the nineteenth century),144 yet legal evolution under the guise of ‘progress’ and ‘maturity’ seems far from extinct. However, does this evolution (or ‘evolution’) actually translate into the gradual accumulation of knowledge? Does the idea of legal evolution as an epistemological notion still have intellectual force and credibility? Much probably depends on the level at which one operates. If the object of the evolution – that is to say, the knowledge factor – is only legal taxonomy it is certainly possible to say that there have been changes and developments since the time of Rome’s earliest written laws, the Twelve Tables.145 An enormous amount of thought has been expended, at least within the civilian tradition, on the classification and divisions of law, especially since the time of the humanists.146

9.

DIALECTICS TO STRUCTURALISM (AND BACK)

Yet these developments can be regarded as advances only if one subscribes to a structuralist scheme of intelligibility that puts the emphasis on internal coherence and reasoning by deduction. The progression, inspired by mathematics (mos geometricus), was motivated by the desire to axiomatise legal concepts so as to produce a model from which solutions to litigation problems could logically be inferred free from contamination by non-legal ‘subjective’ factors inherent in the minds of human judges (Chapter 5, section 6).147 As Professor Bergel has summarised it, the dream was for ‘a legal rule which would be deduced through strictly logical reasoning thanks to a rigorous terminology, to a hierarchy of rules enshrined in the positive law and to the possibility of extracting particular solutions from a certain number of incontestable axioms’.148 The aim was ‘that one day, in certain branches of the law at least, the mathematical formula might govern legal logic’, for the ‘identification of legal reasoning with formal logic would confer upon it the rigour and the certainty which it often lacks and such identification might be perceived as a benefit’.149 This aim has, as yet, never been attained, and the great temptation is to agree with Professor Bergel that the whole of this mos geometricus (or mos mathematicus) enterprise is an illusion in that it comes up against insurmountable difficulties of method and against the objectives of every legal system. 146 147 148 149 144 145

Stein (1980), at 122. See eg Mannino & Orphèle (2007). Ibid. And see Descheemaeker (2009). Kelley (1990), at 213–19. Bergel (2003), at 291. Ibid, at 291–2.

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As Bergel says, legal concepts are not like mathematical concepts; many are incapable of being precisely defined and depend upon a range of social, economic and (or) political factors. Moreover, rule-like propositions in law are either qualified by a mass of exceptions or find themselves having to exist side-by-side with other contradictory rules that are stated, perhaps in another legal category, independently of these first propositions. How, asks Bergel, is one ever going to translate that an agreement has effect only between the parties but that one can stipulate for a third party, that certain obligations can be transmitted to assignees attached to the thing forming the object of the obligation, that one can contract through an agent?150 The important insight that Professor Bergel brings to this debate is his implicit recognition that what is in issue here is a plurality of schemes of intelligibility (cf Chapter 2, sections 6 and 7). Legal reasoning is not just a matter of structuralist schemes; functional, hermeneutical and dialectical schemes are equally important.151 The judge may be bound by a text, but how is such a text to be interpreted and applied? Here of course the judge has access to a range of different schemes which can be used to link the words of the stated rule with the facts of the litigation problem;152 and of course the higher the level of abstraction of the rule, the more ambiguous the words in relation to the details of social fact. The ‘axiomatisation’ of law (codification) ends up not reducing the range of schemes and programmes that can be brought to bear on the problem but actually increasing them. Indeed, as Bergel points out, even when one is dealing with an area of law where there are seemingly precise positive rules, one soon discovers that there is no principle, in any matter whatsoever, that can be proclaimed or accepted without at the same time accepting a contrary principle. ‘This dualism’, says Bergel, ‘is sometimes to be found in history: all individualist regimes conceal within them an element of collectivism and any collectivism carries within it the seeds of individualism’. And so the ‘state of the law is only ever a step in the continuing alternating relationship between the individual and society and, more generally, one of a mass of possible equilibrium points between the different imperatives in cause’.153 A very similar analysis has been made of the common law by Professor Stephen Waddams.154

Ibid. Ibid, at 293–5. 152 Samuel (2009); Samuel (2018). 153 Bergel (2003), at 295. 154 Waddams (2003). 150 151

12. Is legal knowledge cumulative (or has there been progress in law)? (2) In this second chapter on progress in legal knowledge and the question as to whether such knowledge is cumulative, the emphasis will be on historical jurisprudence, on its relation to legal theory in general and on advances, if any, in legal thinking.

1.

PROGRESS (OR NOT)?

Was there, then, progress, in the sense of the accumulation of knowledge during the many centuries of Roman practical and professional scholarship? The answer must surely be positive, inasmuch as these jurists built up a technical and coherent vocabulary and systematic structure of concepts and categories that act even today as the foundational basis of Western legal thought. In addition they provided, through Justinian’s compilation of the law (Corpus Iuris Civilis), a ready-made and rich source of material that could be directly used not just to solve disputes in societies of later Europe but to construct a range of practical political and social theories. Embedded in this legal material were theories of government, of the structure and conduct of commerce, of private property, of individual responsibility and so on. There are even texts reflecting on the nature of things, although of course only because there is a practical issue at stake.1 Thus even if the ‘theoretical contribution of the classical jurists is dismissed as negligible’,2 the Corpus Iuris was a sourcebook that contained both law and theories of law and government. ‘To say that this codification became one of the most formative agencies of Europe’, wrote the historian and jurist Walter Ullmann, ‘would be no overstatement’. The Corpus Iuris in its language, structure and composition ‘served as a model for all subsequent generations’ and ‘was all so conveniently available’.3 However, these theories would never have been extracted, articulated and refined were it not for later generations of jurists and philosophers. How and to what extent did these subsequent practitioners and academics advance the state 3 1 2

D.41.3.30. See also D.5.1.76. Jones (1940), at 8. Ullmann (1975a), at 47. 300

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of legal knowledge? In respect to this question, several points must be borne in mind. The first is that quite early on in this second life of Roman law one can detect a division between the teaching and practice of law that begins to make its mark at an institutional level.4 Law is not just an academic discipline but a form of knowledge capable of supporting a living, and by the fourteenth century there was in Europe a clearly established legal profession servicing the courts and providing the judges.5 What the graduates of the University of Bologna, and quite soon from other law schools, had was a training in Roman and in canon law (itself so largely founded on Roman law methodology that canon lawyers considered themselves lawyers rather than theologians)6 that enabled them to earn money. What was this training and what were the methods, schemes, theories and paradigms upon which it was based? Are they very different today? Second, the Corpus Iuris equally acted as an intellectual source for what we would today regard as political theory (see Chapter 8, sections 6 and 7). ‘Medieval law was’, observed Walter Ullmann, ‘the only means which [allowed] the historian to recognize pure political doctrine, because it was enshrined in, and applied by, the law’.7 Political theory and jurisprudence were, in short, difficult to distinguish and this difficulty, despite (at least in the common law world) a clear institutional separation between lawyers and political scientists, continues to some extent.8 Thus Jones was able to observe of the nineteenth-century jurist John Austin that his ‘approach to the law was that of a political theorist rather than a lawyer’. And one of the twentieth century’s leading legal theorists – Hans Kelsen – drew on jurists who were in fact propounding a theory of public law rather than of law as a notion in itself.9 One needs to be aware, therefore, that to answer the question whether or not a theorist like Dworkin (Chapter 6, section 2) has added to the sum total of legal knowledge, one must ask first whether a legal theorist like Dworkin is operating within the same programme as, say, a theorist like Birks (Chapter 2, section 5; Chapter 4, section 2; Chapter 6, section 3; Chapter 7, section 9). This latter jurist was largely fashioning his model as much to aid the profession as to advance knowledge.10 Was this true of Dworkin? Different programmes may progress differently. No doubt there is a link in the case of Dworkin and Birks, inasmuch as both have produced theories as to how judges should reason. 6 7 8 9

See generally Berman (1983). See generally Brundage (2008). Ibid, at 125. Ullmann (1975a), at 15. On the gradual separation see Ullmann (1975); Tierney (1982). See generally Jouanjan (2005). 10 See eg Birks (1997a), at 2–4. 4 5

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But this is not so true of many other legal theorists against whom Dworkin is compared. Many theorists seem more interested in describing a legal system than in theorising about how judges reason and how one gets from norm or rule to concrete result.11 Perhaps, then, one needs to recall Lenclud’s point about theories in anthropology. An anthropologist does not depart for India with the same books as he would take if he were departing for the Amazon.12 If one moves to a lower level of abstraction and focuses just on the methods employed by practising lawyers, one certainly finds developments beyond those fashioned by the Roman jurists. It was the medieval jurists, for example, who provided the famous definition of the Roman concept of ownership, and they did this through a meticulous trawl of the Roman texts, resulting in the induction of the three defining elements of usus, fructus and abusus and the modern definition of ownership fashioned by Bartolus (Chapter 5, section 1). Similar exercises were undertaken with respect to a whole range of other Roman concepts, such as legal personality and the corporation (Chapter 2, section 3; Chapter 3, section 4; Chapter 4, section 6). And of course it was the jurists and canonists of the ius commune who fashioned the foundations of civilian legal procedure.13 The vast amount of commentary on the Corpus Iuris together with the solutiones and distinctiones that emerged from the discussion of practical cases (casus) provided the practitioners of the late Middle Ages and the early Renaissance with an enormous data bank upon which one could base an argumentum ab auctoritate.14 Yet for the humanists (or some of them at least), all this accumulation of data was anything but an advance. No scientific work in law could be done until these accretions had been swept away and the original texts exposed, thus allowing for their true spirit to be identified.15 Not surprisingly, this new approach of the mos Gallicus aroused the hostility of the practitioners, who found the historical and philological methods of little help when it came to formulating practical legal arguments and decisions.16 Students, however, were most attracted by the humanists’ emphasis on order and system, in which arguments were to be supported by reference to logic, justice and equity rather than by reference to complex and sterile textual authority (Chapter 5, section 5). In a mos Gallicus faculty ‘more progress could be made in three or four months in mastering the principles of the law than in the course of a whole lifetime else-

13 14 15 16 11 12

Atias (1994), at 114–20. Lenclud (2009), at 358. See Van Caenegem (1971). Jones (1940), at 11–25. See in particular the importance of the loci; Jones, at 23. Ibid, at 30. Ibid, at 32; Pichonnaz (2008), at 81.

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where’ (that is to say, in a mos Italicus faculty).17 The humanists themselves argued that in universalibus methodus, in singularibus exercitatione.18 And the ‘need for a more intelligible statement of the principles of the law, and the growing dissatisfaction with the arrangement or lack of arrangement found in the Digest, resulted in the publication of one work after another professing to supply the true ars juris which all were seeking’.19 Looking back on this history of practical legal knowledge, it is tempting to conclude that the different movements of the mos Italicus, the mos Gallicus and the mos geometricus, when combined, have resulted in an evolution or progression that has permitted the contemporary lawyer to be better informed. Moreover, these movements have provided the data not just for the professional lawyers; they have, as Jones’ book on the history of legal theory so clearly illustrates, equally provided the language, concepts and relational structures for the great majority of modern legal theories (above Chapters 7­–8).20 The idea that there is a law of nature (ius naturale)21 or, alternatively, that all law flows from the state (the emperor)22 or, again, that the power of the ruler has as its original source a kind of social contract (lex Regia) all come from the Corpus Iuris as developed and interpreted by the generations of later jurists.23 In other words, all the different programmes and levels of operation in law are interrelated if one adopts a diachronic vision of the discipline.24 It is only when one adopts the synchronic viewpoint that the different levels – in particular between the legal theorist and philosopher on the one hand and the legal practitioner on the other – become exposed.25 Perhaps, then, one should abandon the metaphor of ‘progression’ and replace it with another. Christian Atias has suggested that legal knowledge is sedimentary – that one generation of jurists does not really succeed another: ‘they interpenetrate and co-exist in the memory of the profession.’26 In terms

Jones (1940), at 35. F Douaren, Epistula de ratione docendi discendique iuris (1544). 19 Jones (1940), at 39. See also Kelley (1990), at 209–13. 20 See generally Jones (1940). 21 Ibid, at 98–138. 22 Omnia principis esse intelligantur: C.7.37.3. And see Jones (1940), at 79–97. 23 Dig 1.4.1. 24 Thus one can argue that even American Realism infiltrated practical legal reasoning in the way the English judges finally abandoned a conceptual structuralist approach to land law and adopted an approach more orientated towards social functionalism: see Gray & Gray (2003). 25 Leading of course to complaints from practitioners that what is going on in the law faculties no longer has relevance for professional lawyers and law in practice: Jestaz & Jamin (2004), at 293–5. 26 Atias (1994), at 71. 17 18

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of a scheme of intelligibility, there is within the legal knowledge a continual dialectical debate which takes place between the various sedimentations, and it is this continual internal conflict that generates a particular kind of legal rhetoric.27 ‘According to the case, according to the audience to whom he understands or believes he is addressing’, says Atias, ‘the jurist does not use the same information nor the same arguments’. What he does is to adapt ‘the style of his argumentation to the circumstances of time and place and of theme and audience’ but, having done this, he also makes sure ‘not to utilise certain available information’.28 This may be true, yet professional legal knowledge is, at least when viewed over the centuries, not so much progressive but highly formalised into a set of concepts which remain relatively stable over long periods of time.29 In addition, the methods, while not static when viewed over the centuries, are seemingly cyclical. Kelley, for example, notes that the methods and attitude of the nineteenth-century French jurists towards their text (the Code civil) was the same as the Glossators towards their text (the Corpus Iuris).30 The concepts accordingly are like a child’s bricks, as Otto Kahn-Freund once put it (Chapter 7, section 1). They can be used to construct a station one day and a garage the next.31 Or perhaps another metaphor might be chess. The pieces (like the bricks) remain the same and can be used and moved only within quite strict limits governed by the authority of the board pattern and the game rules. But within this authority there is liberty of movement and choice. Moreover, the aim is to win rather than to advance the state of knowledge. Unlike chess, of course, the legal ‘moves’ are dependent upon acquired knowledge; there are no child prodigies. But if one studies what and how students had to learn law in a medieval university it is not really so different than what they have to do today.32 The professional paradigm, it can be argued, is the authority rather than the inquiry paradigm (Chapter 2, section 2); and advances in legal thought have been made only through programmes and postures that make use of development from outside law. Even those academics such as Peter Birks have had to call upon zoology to push their hypotheses; and Ronald Dworkin (Chapter 6, section 2) has been able to explain the role of judges by recourse to Anglo-American literature.33 Other legal philosophers have recourse to moral or political philosophy or to the social sciences. And indeed, within the social 29 30 31 32 33 27 28

See further Samuel (2019). Atias (1994), at 83. Maclean would seem to support this thesis: see Maclean (1992), at 205. Kelley (1984), at 47. Kahn-Freund (1949), at 6. See Brundage (2008), at 248–62. See further Sandberg (2021), at 202–4.

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sciences some theorists, such as Luhmann, who in turn has influenced jurists,34 have had recourse to the natural sciences (biology in Luhmann’s case) for their schemes of intelligibility (systems theory).35

2.

LEGAL THEORY AND PROGRESS

As for legal theory, the range and variety of contemporary writing in this area is far too vast to be examined, or even summarised, in a single monograph. The writings, and criticism, of Dworkin alone have generated an enormous volume of literature, and a similar observation can be made about a range of other legal philosophers. Nevertheless, there are several points that might be made about this theory literature, above all in relation to some of the observations and conclusions, with respect to other social science disciplines, asserted in the Walliser collection (see Chapter 11). The first is that – unlike anthropology, it would seem – the discipline of law has generated lively internal theory debates.36 Lenclud argues that confrontation is an essential criterion for cumulativeness at the level of theory – something that he says is missing in anthropology37 – and, if he is right, then it should follow that in the field of jurisprudence (and equivalent domains in the civil law world) an accumulation of knowledge ought to be distinctly visible. Yet is it? Have the Great Questions, for example between natural law and positivism or between law and morality, been tackled in such a way by the vast literature that a contemporary student can feel that legal scholarship is gradually progressing towards a resolution of these issues? Or are the confrontations simply producing, to borrow an image from geography, une cumulativité spiralaire that is actually only spiralling around in circles in, at best, an undulating way?38 Perhaps the only epistemological answer to this question is, as again Lenclud has observed with respect to anthropology, that it all depends upon the consensus of those within the discipline.39 If the majority think there has been progress, then progress there has been. Second, the role of legal theory in the discipline of law is, from the professional training viewpoint, almost irrelevant (save to the extent that professional

See Teubner (1993). One writer sees Luhmann’s theory in terms of a mixture of several schemes of intelligibility: structuralism (system), dialectics (conceptual oppositions), function and hermeneutics: Reese-Schäfer (2006). 36 Samuel (2019). 37 Lenclud (2009), at 356. 38 Pumain (2009), at 196. 39 Lenclud (2006), at 90–3. 34 35

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law is founded upon an implicit, usually positivistic, theory).40 The great majority of law graduates in Europe do not study jurisprudence, legal philosophy or legal theory either in the university law faculty or in professional law schools.41 Indeed, it might be useful to recall Weir’s assertion that he had no theory to propound since contract ‘is a construct, an institution, not a natural system such as a cat or a stone’ (cf Chapter 9, section 5).42 As Terry Eagleton noted, the ‘economist JM Keynes once remarked that those economists who disliked theory, or claimed to get along better without it, were simply in the grip of an older theory’.43 But the serious point to emerge from the Weir observation is that it probably reflects a quite prevalent attitude among ‘black-letter’ or ‘doctrinal’ lawyers, that is, among those who view the discipline and their role within it as the study and application of legal rules within a fairly rigid logical and interpretative approach.44 Thus even if one is able to conclude that knowledge is cumulative at the level of theory, such cumulativeness may have little or no impact with regard to the great bulk of legal scholarship – that is, on the mixture of description and textual commentary and analysis to be found in many of the journals and in the textbooks on various areas of law.45 Take the following description of the goals pursued by a law faculty. These ‘goals were threefold: first, each faculty sought to make sure that its students thoroughly and systematically mastered the authoritative texts of the discipline’ and, in addition, each faculty ‘insisted that their students must learn how to analyze problems and frame persuasive arguments, so that they could effectively uphold one side of an issue while refuting the others’.46 Is this a description of a medieval, a sixteenth-century, a nineteenth-century or a contemporary law faculty? One answer is to say that it equally applies to all of these different time periods (although the author is actually talking about medieval civil law faculties). Was not the goal of a nineteenth-century French

Cownie (2004), at 50. See further on this issue Sandberg (2021). 42 Weir (1992), at 1616. 43 Eagleton (2008), at xiii. 44 Priel (2019); Cownie (2004), at 49–50. 45 One should perhaps note a difference here between Anglo-American law faculties and civil law faculties: see generally Cownie (2004) and Jestaz & Jamin (2004). Cownie’s empirical study of law academics in the UK suggests that a distinction must now be made between those teaching and researching law (legal academics) and those practising law. Professor Cownie concludes that in general there is a commitment among academics both to black-letter law and to presenting this law in a social context (at 197–8). Jestaz and Jamin present a rather different image for France, where there is a clear divorce in law faculties between law and the other social sciences (at 172­–6). However, see now Priel (2019). 46 Brundage (1998), at 248. 40 41

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law faculty to make sure that students mastered the Code civil and to analyse practical case problems in terms of a thesis and anti-thesis?47 Is not the goal of an English law faculty to ensure that students have mastered the legislative texts and the cases and to have learnt how to analyse problems and frame arguments?48 One could make an analogous point about the legal literature and its aims and objectives.49 Of course, underpinning all of this methodology and prescribed learning outcomes is a set of reasoning techniques, schemes of intelligibility and paradigm orientations.50 But these are not articulated by those teaching doctrinal law in a way that permits one to assess the extent to which there has been any progressive development with regard to these exegetic techniques.51 As a work on the history of legal thought pointed out not so long ago, legal historians ‘possess a vast and deep-going knowledge of the growth of Roman law in terms of concrete institutions and rules; they are less well-informed about the philosophical, theoretical and methodological ideas

47 Jestaz & Jamin (2004), at 217–39. Kelley (1984) makes the point that ‘so much professional legal apparatus – methods, arguments, and centuries of precedents and literature – was attached to the Roman tradition’ (at 47). See also Orianne (1990). 48 Cownie (2004), at 197–8. And see eg G Jones (1996), at 10. However there is no doubt that many academic lawyers in the UK think that there is more to a law degree than this: see generally the series of books edited by the late Peter Birks (1992), (1993), (1994), (1996). The papers to be found in these books indicate, on the whole, a more ‘liberal’ approach to legal education than is perhaps to be found in the civil law world (see eg Jestaz & Jamin (2004), at 265–301, who describe the US legal education system as an ‘anti-model’). Nevertheless, this more interdisciplinary and contextual approach is not completely new: some sixteenth-century humanists thought ‘that nothing but good could come from an alliance between law and humanities’ (Cum enim in Iure multa sint quae sine cognitione studiorum humanitas percipe nequeant): Jones (1940), at 31 (quoting Alciatus). This said, there may now be something of a regression among common law academics: see Priel (2019). 49 Jestaz & Jamin (2004) put the emphasis on literature rather than the university curriculum itself, but it is clear that the two cannot be divorced. See also the books cited above on the law syllabus and on law schools edited by Birks. 50 See further Samuel (2018). 51 One exception, at least with regard to the common law, is the work of Professor Stephen Waddams, who has examined in depth legal reasoning techniques (particular functional and policy arguments) of judges: see Waddams (2003), (2004), (2011), (2016) and (2019). More generally see also Gordley (2013).

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and principles adopted by the Roman lawyers’.52 This may, of course, be less true today.53 Where perhaps there has been development – and this is a third point to be made about the legal theory literature – is with regard to the interdisciplinary influences that have impacted on legal thought. Such influences started to flourish, of course, with the humanists,54 and continued via a tradition of academics such as Leibniz, whose learning was by no means confined to a single discipline (Chapter 5, section 6).55 However, the rapid and sophisticated growth of the social science disciplines in the nineteenth century saw the beginning of a new era of interdisciplinarity in the twentieth century, of which one of the most striking is the law and economics movement (see Chapter 6, section 4).56 This movement has had a profound impact on legal theory – and not just from a synchronic viewpoint, but also from a diachronic one.57 As early as the late 1930s, Walter Jones saw it as one of several foundational categories from which the history of legal theory might be viewed.58 And while the most influential (and often, as we have seen, unarticulated) theory to underpin the professional or doctrinal view of law since the nineteenth century is, as we

52 Strömholm (1985), at 46. One might note also the imposition in certain faculties of a prescribed methodology: see (on the mos Italicus) Jones (1940), at 34–5 and (on contemporary France) Jestaz & Jamin (2004), at 217–32. On the position in English law see Birks (1996), at xv–xviii; Oliver (1994), at 80–2. Note also Jolowicz’s comment made during the 1950s: ‘Modern text-books are important […] as guides to the case-law with which they are concerned. But if they are good they are more than mere guides, for they seek not only to arrange the cases systematically but to extract from them the general principles of the law and to show how those principles may be developed. And the same is true, on a smaller scale, of articles in the Law Reviews’: Jolowicz (1963), at 314. Nevertheless the attitude of the professions in England was ambiguous towards university law faculties. As the late Professor Birks noted, the ‘bar’s admission policy for 1992 and 1993 has demonstrated its contempt for legal education, a curious attribute for a profession which continues to describe itself as learned and compares its role to that of consultant physicians’: Birks (1993), at 14. Indeed, he later observed, ‘Patrick Phillips QC […] told the sixth-formers who had gathered to hear him that a law degree was a complete waste of time” (at 17). This was written of course nearly 30 years ago, but even today one wonders whether the professions think the law school is doing too much or too little in terms of a prescribed methodology. This said, changes in professional entrance examinations have resulted in much more freedom for law schools in respect of their degree contents. 53 See eg Schiavone (2017). 54 Jones (1940), at 31. 55 Ibid, at 39–41. 56 See Harris (2018). 57 See Fleming (2018). 58 Jones (1940), at 235–69.

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have mentioned, probably legal positivism,59 there is no doubt that economics has made itself felt even at the level of authoritative legal data, that is to say, legal judgments (authoritative texts).60 It is now penetrating French law.61 Perhaps almost as important is law and sociology, which, like economics, is influential at a range of levels. One can certainly identify a law and sociology movement at the level of legal theory itself.62 However, if one expands sociology to include the social sciences in general, the influence is very much more pervasive. A majority of law teachers in UK law faculties now consider that they teach law in a social context,63 and this is reflected in courses – such as feminist jurisprudence and gender and the law – that certainly would not be found in any pre-twentieth-century law faculty. Yet are these interdisciplinary developments evidence of a knowledge progression and accumulation within the discipline of law (or legal theory) itself, or only of the progression in disciplines outside of law? Do today’s members of the Society of Legal Scholars know more about law than the original members? Jones seemed to suggest, with respect to economics, that it was the advance of economic studies during the previous century that stimulated this new legal perspective.64 If this is true of all the ‘law and…’ movements, including law and history, one simply needs to look at the Walliser collection to appreciate the extent (if any) of cumulativité. It is not law that has progressed as such, but other disciplines.

3.

PROGRESS OR REFINING?

One answer, then, to the theory question is to acknowledge that, even if all roads do lead back to Rome,65 there has been considerable refinement to the theory of law.66 For example, the Post-Glossators took corporation theory to a far more sophisticated level than the Romans.67 The social contractarians not only re-fashioned law from the viewpoint of the subjective right but also

59 Some care must be taken here because in the history of legal thought in English law the common lawyers drew on a wide variety of theories in their attempt to put order into the law: see Lobban (2016). 60 See eg Lord Hoffmann in Stovin v Wise [1996] AC 923 and Wildtree Hotels Ltd v Harrow LBC [2001] 2 AC 1. 61 See eg Mackaay & Rousseau (2008). 62 Morag-Levine (2018). 63 See Cownie (2004). 64 Jones (1940), at 235. 65 Ibid, at v (Preface). This of course is disputed by Monateri (2018). 66 ‘Human inventiveness has, for good or ill, been fruitful within the law as well as outside it’: Jones (1940), at 265. 67 Canning (1987).

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created a structural scheme that continues to be influential.68 And the German Pandectists developed a theory of public law that was to find its most accomplished expression in the work of Hans Kelsen.69 Legal theory, it can plausibly be argued, is far more sophisticated than it was two millennia, or even a millennium, ago. Yet just how much of an advance in epistemological terms are these theoretical developments? Ulpian had, nearly a thousand years before Baldus, established the key conceptual basis of the corporation.70 The social contractarians were re-employing a model to be found in a text again from Ulpian (on the lex Regia).71 And Kelsen’s model could well be seen as a secular version of legal and theological hierarchies that had been developed in the post-classical Roman era and refined during the late medieval and early modern times.72 Viewed from a structural scheme of intelligibility, neither the Post-Glossators nor the social contractarians nor Kelsen were adding that much to knowledge; they were simply polishing and refining long-established models. Indeed, one can equally ask just how stable these models are. Are not notions such as the Grundnorm – and in fact Herbert Hart’s ‘rule of recognition’ – little more than fictional ideas that cannot really be tested against any exterior object? Are they really anything more than idealistic models that may or may not ‘fit’ the facts, much in the same way as theological and astrological models? Kelsen’s and Hart’s models may be socially useful, but then, religion and astrology bring comfort to many people. Moreover, they are likely to be abandoned when cultural and political moods change. In short, are not legal theorists just ideologists pretending to be scientists? This is perhaps an unfair accusation inasmuch as many jurists are, on an analogy with scientists and social scientists, striving to forge rational and coherent models.73 They are attempting, if not to provide insights into empirical reality, at least to furnish a conceptual framework for achieving social, economic and political justice that is institutionally grounded and, analogically, as practical as scientific models in that they aim to predict.74 Astrological models predict everything and nothing, while attempts by theologians to predict have usually ended in embarrassing failure.75 Moreover, many doctrinal lawyers have continued to employ their own particular methodological approaches

Atias (1994) at 94–5. See generally Jouanjan (2005). 70 D.3.4.7.1. 71 D.1.4.1pr. 72 See Tierney (1982). 73 With regard to English law see Lobban (2016). 74 Again on English law, see Waddams (2003). 75 See eg Armstrong (2004), at 91–2. 68 69

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over the centuries irrespective of whatever theory of law might or might not be dominant.76 It is perhaps, then, in the work of these doctrinal and practising lawyers that one should seek the foundations of legal knowledge. However, the moment one does this, the question of cumulativeness becomes a sensitive issue. If it is possible to run comparative law courses focusing on Roman and English law – the University of Cambridge once ran a postgraduate module entitled Negligence in English and Roman Law and the University of London once had a Roman and English comparative contract course – this suggests that the methodological and epistemological model has changed little over 2000 years. One can appeal to Roman law knowledge to solve modern-day issues.77 Imagine a course on engineering in Rome and modern Europe. No doubt some Roman engineering technical knowledge remains useful and valid today, but there is little doubt that engineers know more today than they did two thousand years ago. Accordingly, if a faculty ran a course such as Bridge Building in Ancient Rome and Modern Britain, the focus would surely be on the advances in engineering knowledge. A course on the Law of Obligations in Roman and modern law might attempt to argue that the Code civil reveals advances at the level of general theory – today there is a law of contract rather than contracts, and delict rather than delicts – but some common lawyers might dispute that this is an advance as such.78 It might be claimed that reductionism does not always equal progression. Indeed, Edgar Morin argues that it is an obstacle to understanding complexity.79 But does it matter that there might not have been that much progression (as opposed, of course, to accumulation) over the centuries in legal knowledge, especially at the level of doctrinal law? From the synchronic viewpoint it would appear not; as Dworkin has seemingly implied, one can be a good mathematician without having knowledge of the history of mathematics and thus one can be a good lawyer without having a knowledge of legal history.80 Or, as Brian Tamanaha puts it, legal ‘philosophers can account for and analyse See eg Perelman (1979). See eg Lawson (1950). 78 One major work that charts the history of the law of obligations from Roman to modern times, and which includes the common law tradition, is Zimmermann (1996). Is this a work charting knowledge progress? It certainly illustrates change and even the overcoming of certain ‘obstacles’ in Roman legal thinking (such as the nudum pactum not giving rise to an obligation), but is this an epistemological progress that can be compared with progress in the natural sciences? A similar exercise can be carried out with regard to Ibbetson (1999). Is Professor Ibbetson’s book charting progress or just change? 79 Morin (2005). 80 Dworkin (1986), at 14. 76 77

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temporal aspects of law without being concerned with history per se’.81 One could perhaps say the same for any science. However, do not new editions of science textbooks reveal real advances in knowledge of the external world? New editions of law books, in contrast, reveal just the continual accumulation of textual material (cases and statutes) together with doctrinal commentary that has been described as little more than opinion and thus, perhaps, not always that much different (save in language and intellectual style) than a Sun editorial.82 One can be a good lawyer without a knowledge of legal history, but what amounts to a good lawyer? Dworkin, to his credit, devoted much of his career to fashioning an answer to this question and, arguably, that is why he remains an important theorist, despite the fact that probably quite a large number of jurists and judges think that his answers are ‘controversial’.83 However, the ‘interpretivists’ who have adopted Dworkin’s rights approach seem intent on fashioning an idealistic model that appears to be not only a retreat from functionalism but also a return to the kind of conceptual structuralism that has characterised legal thought from the mos Gallicus and usus modernus pandectarum to nineteenth-century Pandectivism (see Chapter 9).84 Rather than progressing, legal knowledge is seeking solace in its past.85 And so while one is not talking here of a group of people rearranging the deckchairs on the Titanic, one is perhaps witnessing, metaphorically speaking, the rearrangement of the chairs on a four-funnel liner that is watertight but whose rudder has become permanently jammed. It is sailing gently around and around in a large circle.

4.

HISTORICAL JURISPRUDENCE AND SOCIETY

One objection to this rather pessimistic vision of progress in legal knowledge is that it says little about the relationship between law and society and how law changes and develops – progresses? – as society changes and progresses. That law does change, both in the long term and the short term, in response to social, economic and (or) political circumstances cannot be denied. Stephen Waddams has shown how common law judicial views of the law can change

Tamanaha (2016), at 337. See also Gorman (2016). Toddington (1996), at 74. 83 Twining & Miers (2010), at 353. 84 One work that places Dworkin in this historical context, although only briefly, is Stein & Shand (1974), at 97–102; however, this only deals with one early paper by Dworkin. Of course, at a more general level Dworkin can be placed within the historical tradition of natural law thinking that, via the expression ius naturale, can be traced back to Roman law. 85 Although, of course, it functions as if it has no past: Atias (2009), at 204–5. 81 82

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almost within a decade in some circumstances.86 Over a longer period we have also seen how the common law changed during the nineteenth century, its inefficiency and lack of institutional coherence exposed in the series of Parliamentary Commissioners’ reports (see Chapter 10, section 4). In the civil law tradition change has, unsurprisingly, equally been stimulated by social movement and development. One only needs to compare a copy of the original Code civil of 1804 with a copy of the 2021 edition. As for theory, Brian Tamanaha notes that in a volume devoted to legal history and legal theory, many of the chapters indicate ‘how law and legal theory interact over time’ and notes how these ‘theories change to reflect changes in law, and sometimes law changes owing to theories of law.’87 This comment by Tamanaha seems surely accurate: one would expect law to reflect (at least to some extent) the society within which it operates, and theories about law to mutate and change as the law (and society) changes. Yet what is the relationship between law, society and theory? Is change and development subject to a causal scheme of analysis between law as a body of knowledge and the social (and economic and political) facts within which it operates? While the intuitive answer seems positive, we have seen that Alan Watson (1933–2018) offered a different thesis (see Chapter 3, section 3 and Chapter 6, section 8). At the risk of repetition, it might be useful to return to this author’s thesis in order to examine it, and the criticism it attracted, in a little more depth. Watson published an enormous number of books and articles during his long career, but one that proves of particular interest looks at first sight a relatively modest piece, namely an article on the importance of ‘Nutshells’ – elementary introductions to law published under this series name and no doubt reflecting the Latin in nuce.88 Yet, arguably the article is more than modest in that it raises two (if not more) important questions that are highly relevant, even if controversial, for historical jurisprudence.89 The two questions are these. The first, of course, is: why are ‘Nutshells’ so important? The second is more controversial: did Watson have a law and society thesis that legal historians and comparatists should take seriously? That Watson has not been taken seriously, at least by some, is evident in Lawrence Friedman’s comment that ‘attacking Watson is like shooting fish in a barrel’.90 This comment in turn was partly based on Roger Cotterrell’s critique of Watson.91 The first Watson thesis is that all Waddams (2016). Tamanaha (2016), at 332. 88 Watson (1994). 89 This is not to imply that these questions were not raised and pursued in some of Watson’s other publications. 90 Friedman (2001), at 93. 91 Cotterrell (2001). 86 87

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modern legal systems founded on the civil and common law are inconceivable without the input of Nutshells (brief introductions to law) (Chapter 3, section 3). The second, more controversial, thesis is that Nutshells ‘show that in large measure law does not emerge in any real sense from a society in which it operates’.92 In short, Watson was asserting a thesis that seems squarely opposed to the views of those who think that there is a very strong connection between law and society and (or) between law and culture (Chapter 6, section 8). Watson starts his article by noting that the first and only Roman work that attempts a systematic overview of Roman law is Gaius’ Institutes, which used the structure that was to become famous thanks to Justinian’s Institutes, namely persons (ius personarum), things (ius rerum) and actions (ius actionum) (see Chapter 3, section 3). The Institutes of Justinian, for Watson, was the key book for the reception of Roman law into Europe after the invention of printing in the fifteenth century. And he made the point that the Institutes was one of the most printed law books at this time and was important not just for the learning of Roman law but also for local law. It provided a conceptual terminology and a structure through which local law could be understood.93 He mentions Lancelotti, Institutiones Juris Canonici (1563) and Loysel, Institutes Coutumières (1607), which use the institutional structure to present their non-Roman principles (see Chapter 8, section 2). Pothier equally used the structure when reorganising the Roman regulae iuris,94 and it is employed by Cambacérès in his Projet de code civil (1796) (persons, things and obligations) (see Chapter 8, section 2). Moving towards the Code civil (1804) – described by Watson as a statutory Nutshell95 – he argued that two Nutshells that influenced the structure of the code were Argou’s Institution au droit français (1692) and Julien’s Élémens de jurisprudence selon les loix romaines et celles du Royaume (1785). Justinian’s (and Gaius’) institutional scheme was also influential on some English law works, such as Cowell’s Institutiones Iuris Anglicani (1605) and of course Blackstone’s Commentaries on the Law of England (1765­–9). In more recent times, as we have seen, Peter Birks asserted that the institutional scheme provided a map of the law, as relevant for the common lawyer as for the civilian one (see Chapter 1, section 6; Chapter 2, section 5; Chapter 6, section 3). There are two interesting issues that arise out of this Nutshell thesis. The first concerns the role of introductory textbooks both in general and in describing,

Watson (1994), at 2. Ibid, at 10. 94 RJ Pothier, Pandectae Justinianeae, In Novum Ordinem Digestae (1748–52) Tomes 23–4. 95 Watson (1994), at 17. 92 93

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if not defining, legal knowledge with the aim of transmitting it to students.96 It is unlikely that a contemporary jurist would describe an introduction to law – or indeed even a hefty textbook – as part of the ‘law’ itself. Such works are, instead, commentaries on the law. The position might of course be different if such writers were endowed with the status and authority to pronounce what the law is, but this is not the position within the common law tradition. In the civil law world law professors certainly have, on the whole, greater authority, but to assert that they are an official source of law rather than authoritative commentators would be too much.97 There is, therefore, an interesting distinction that is emphasised by Watson’s Nutshell thesis. What contribution do introductions to law make to the understanding of what constitutes legal knowledge? As will be seen (below, section 6), from a historical viewpoint, law books – which became ever more institutional – can prove ambiguous with regard to the distinction between the law and commentaries on the law.

5.

SYSTEMS AND SOCIETY

This ambiguity takes one on to the second interesting issue to arise out of the Nutshell thesis. Watson’s emphasis on the Institutes is equally an emphasis on the system upon which such a work is founded (Chapter 3, section 3), in turn suggesting an epistemology of systems. What the author was asserting, it might be said, is a transplantation into medieval Europe not of rules but of an institutional system. Indeed, in one of his monographs, as we have seen (Chapter 3, section 3), Watson asserted that ‘Roman law, as it appears in the sources, divides naturally into self-contained and self-referential blocks’ and transmission ‘has often been of individual blocks, not Roman law itself’.98 These self-referential blocks, or one might say sub-systems, are for example sale, remedies for fraud, possession and the different kinds of contracts. What Watson seems to be saying, then, is that the Institutes constitute a general system of private law while the Digest is made up almost entirely of sub-systems, and it is these systems that have been transplanted throughout the world (thanks largely to Nutshells). This would surely be a thesis to be welcomed by systems theorists such as Gunther Teubner, for it asserts that ‘the autonomy of the legal system, which is equipped with its own evolutionary mechanisms’ is something that transcends society and culture, and such ‘aut-

On which see generally Cabrillac (2017). Watson (1981), at 168–78. 98 Watson (1981), at 15. 96 97

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opoetic closure of the legal system means that law cannot be seen simply as a product of social evolution as a whole’.99 Teubner’s analysis takes us to Watson’s second and more controversial thesis. ‘But that law texts’, argued Watson, ‘written in a very different place and very different time can be recycled so readily suggests problems for the views that law reflects the intellectual, social, economic, and political climate of its time’.100 Watson then went on to pose this question. ‘In what sense’, he asked, ‘does Gaius’ Institutes reflect the society of pagan Rome and with some modifications, Christian Byzantium?’ As one can imagine, this assertion has attracted major criticism, in particular from Roger Cotterrell. However, Cotterrell’s attack is not so much a head-on one but a rather more subtle critique that chides Watson both for his simplistic view of what legal sociologists think about the relation between law and society (‘mirror theory’) and for his lack of empirical support for his assertions. Indeed, says Cotterrell, ‘he is actually unconcerned with the rigorous construction of theory at all’.101 Watson’s approach ‘misunderstands legal sociology while making its own fundamental sociological assumptions’. Yet, admits Cotterrell, ‘he provides a partial perspective on legal development which represents informed reflections on some important aspects of legal experience’.102 Pierre Legrand’s attack on Watson is focused more on the transplant (into other cultures) aspect of Watson’s thesis. Professor Legrand asserts a general comparative law thesis that law is a manifestation of culture. ‘At best,’ he says, ‘what can be displaced from one jurisdiction to another is, literally, a meaningless form of words’.103 A rule receives its meaning from without, and given that a ‘meaning invested into the rule is culture-specific, it is difficult to conceive […] how this transfer could ever happen.’104 Thus ‘a crucial element of the ruleness of the rule – its meaning – does not survive the journey from one law to another’.105 One difficulty with this critique, in the context of the Nutshells article, is that Professor Legrand is actually focusing on the notion of a rule rather than on the system which seems to be the object of Watson’s thesis. This is perfectly legitimate in that in other publications Watson has indeed talked about ‘the moving of a rule’.106 Moreover, Legrand has asserted that law can only exist in language and that since a language always constitutes a meaning

Teubner (1993), at 57. Watson (1994), at 21; see also Watson (1981), at 19. 101 Cotterrell (2001), at 76. 102 Ibid, at 77. 103 Legrand (2001), at 63. 104 Ibid, at 60. 105 Ibid. 106 Ibid, at 55–7. 99

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that is singular and contingent, it is impossible to create or bring about some universal legal notion.107 The idea, therefore, that there is a system or structure to be found in Nutshells of Roman law that can rise above particular national cultures and language is, for him, an impossibility.108 When viewed from a cultural orientation, then, the Watson thesis appears problematic. However, if considered from a scientific or naturalist viewpoint the thesis gains credibility, even if Cotterrell’s critique remains valuable. In his work on law as an autopoietic system, Gunther Teubner argues ‘that a theory of legal evolution has great analytical and practical power if it stops claiming to be able to explain individual events and concentrates instead on structural patterns’.109 It ‘could explain or even predict general structures of the law’ even if it cannot ‘explain individual legal acts, court verdicts, laws, and administrative acts’.110 There is no doubt that Professor Teubner has raised some fundamental issues in his work on systems theory. One in particular – which is bound up with the whole question of legal evolution (see Chapter 11, section 8) – is the relationship between law as an autopoietic closed system and the social, economic and political contexts in which it functions. Is law simply the product of social evolution? Those, like Alan Watson, who have dared to suggest that the relationship between law and social context is more tenuous than it might seem have, as we have just seen, come in for considerable criticism. So one question prompted by Professors Watson and Teubner which ought to be of concern to historians, theorists and comparatists is the extent to which law might evolve internally, perhaps – and this is the big perhaps – with a certain isolation from cultural and economic contexts. Care must be taken here, for the suggestion that there is no interaction between legal developments and social change or that law is not a product of culture would surely be an idle claim (cf Chapter 6, sections 5–8). But structuralism, and systems theory in particular, suggest that, as with the natural sciences, conceptual movements do not in themselves always depend directly upon external factors; there are movements internal to the sciences.111 This said, and while there is no direct engagement as such with Gunther Teubner’s book, Christopher Tomlins does take on structuralist approaches and uses Robert Gordon’s post-structural criticism to attack the notion ‘that legal ideas just “evolved” according to some mysterious dynamic’.112 Tomlins Legrand (2015), at 99. For a discussion on this point (and others) see Samuel & Legrand (2020). 109 Teubner (1993), at 49. 110 Ibid. 111 Granger (1995), at 114–15. 112 Tomlins (2016), at 62. However the actual quote is from Robert Gordon in a cited extract from: Gordon (1984), at 122–3. 107 108

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seems to conclude that the battle against structuralism has been won.113 But in declaring victory he has overlooked the fact that Professor Teubner himself took on Robert Gordon in his chapter on legal evolution. Teubner’s point is that Gordon was making a fundamental historiographical error in failing to see that the two of them are working at different levels of observation. ‘We are’, says Professor Teubner, ‘dealing with two different levels of analysis’.114 The source of the error is well described in a French introductory work on the social sciences. There is no one knowledge of, say, history; knowledge is possible only thanks to the découpage of reality and the techniques that apply to a particular point of observation, which itself is always limited.115 Different levels of observation produce different kinds of knowledge, and so when the level of observation changes, the results obtained will change (Chapter 2, section 4).116 This dichotomy is of course part of the more general tension between holism and individualism (see Chapter 2, section 3), and so the point to be emphasised here is not that one or the other is right or wrong in their assertions and critiques. Indeed, Gordon’s argument about evolution and a ‘mysterious dynamic’ remains an important warning to those who refuse to write off the whole notion of legal evolution.117 The point to be made is that any dialogue between legal historians and legal theorists must, in the end, be situated within the domain of epistemology, a domain that will require all participants to be acutely aware of the lessons emerging from science and social science epistemology – and of course historiography itself. Can, then, Watson’s argument survive the attacks? It has to be admitted that Professor Cotterrell makes a very strong point about the lack of theoretical rigour in his transplant and law and society writings. Watson was good (sometimes) at throwing out ideas, but less good at anchoring them in an empirical and (or) a theoretical foundation. Nevertheless, the idea that conceptual models can undergo their own internal developments is one accepted by many epistemologists of science. There is

Tomlins (2016), at 63–4. Teubner (1993, at 51. 115 Desjeux (2004), at 91–2. 116 Ibid, at 5. 117 Although care must be taken here since it is equally easy for someone operating within, say, a culturalist or Marxist paradigm to dismiss any theory about the internal development of concepts as a ‘mysterious’ dynamic. The French epistemologist of science Gilles-Gaston Granger has written: ‘The successive development of basic concepts is not in essence dependent upon circumstances extrinsic to science itself. Certainly the date and the conditions of their coming to light results to a large extent from the economic, political and ideological circumstances of the society where they are to be found, as also from the history and personal psychology of the original scientists. But the linking together itself of their discoveries is dependent in the final analysis on an internal movement of concepts’: Granger (1995), at 114–15. 113 114

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an internal rationality and conceptual movement to be found in the history of the sciences even if there is not complete isolation from the social, political and economic conditions of the time.118 Perhaps this is also true of the history of Roman law in Europe, which, if so, might well mean that Watson’s thesis, while rightly attracting criticism for its shortcomings, deserves not to be dismissed.

6.

LAW AND DISCOURSE ON LAW

Alan Watson’s discussion of Justinian’s Institutes and how this book was one of the primary vehicles for the transplanting of Roman law into other cultures raises another interesting question. What was the status of this book? A similar question can be raised about Blackstone’s Commentaries on the Laws of England, which, as Watson indicated, was also a vehicle for transmitting the common law to America (Chapter 5, section 8).119 Were the Institutes and the Commentaries ‘the law’ when acting as vehicles or were they only commentaries – that is to say, discourses – on the law? The distinction between ‘law’ and ‘commentaries on law’ is an important one when considering the question of progress and legal knowledge, in that actual law texts have direct authority as law while commentaries do not. Commentaries may have an indirect authority depending on the status of the writer and (or) on what law-makers such as judges think about the accuracy of the commentary. Yet commentaries can not only be highly influential – they may play a central role in the formation of the law120 – but can also become assimilated into the ‘law’ on occasions. This may happen indirectly when, say, a judge adopts and incorporates a commentary into his or her judgment,121 or it may happen directly when commentary texts are given legislative status and authority, as happened in Rome.122 In addition, some jurists in the past (‘commentators’), such as Bartolus, were accorded such authority that their works virtually became ‘the law’; and, indeed, the Glossa ordinaria – that is, the work of the Glossators as summed up by Accursius123 – became for a while more or less ‘the law’ (ius Glossae).124 Why is this distinction between law and discourse on law relevant to epistemology and to the question of progress? Christian Atias has asserted that confusing the two ‘has cost us dear’ in that such discourses can often be mistaken Ibid. Watson (1994), at 14–16. 120 Jolowicz (1963), at 314–15. 121 Ibid, at 313. 122 Jolowicz & Nicholas (1972), at 451–3. 123 Jones (1940), at 12–13. 124 Ibid, at 17. 118 119

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for the law itself .125 The examples are numerous, a particularly notable one in the history of the common law being identified by the late Professor Milsom (1923–2016). ‘Borrowed book learning in Bracton’, he said, ‘made its English law appear on the surface to be of the same nature as the developed Roman law’.126 Maks Del Mar, specifically recognising the distinction, indicates that failing to distinguish between the two means that we might fail to see that the discourse on law is ‘part of a scene of disagreement, of clashes of interests and outlooks’, and in consequence arrive at the conclusion that law is about consensus.127 He is surely right here, for, as he says, while there may at times be temporary consensus, ‘what is much more common is that there are many different kinds of contests, with many different kinds of things at stake’.128 Even the Glossators and Post-Glossators disputed, for example, the nature of legal concepts.129 Such a lack of consensus – or, put another way, tensions between commentators – ought to provide fertile ground for progression in legal thought through a dialectical process. In the common law, it has to be said, the distinction between law and discourse on law was not so easy to see, because for many centuries – and perhaps still today – just what was and is the ‘law’ was, and sometimes remains, not easy to see. Much therefore depended, and still depends, on the commentators.130 In the civil law the distinction, at least at first sight, seems much easier to perceive since the rediscovery of Roman law. There was the Corpus Iuris and there were the commentaries on it. And with codification, there are the codes and commentaries on these codes. In some common law literature, such as a cases and materials book, the distinction between law and commentary is clearly evident, and textbooks today may be authoritative but not authority. The tension between law and the discourse on law is of importance to the legal theory and legal history debate, for the general reason given by Professor Del Mar. But there are some more specific reasons as well. The first is that

Atias (2016), at 219. Milsom (2003), at xiv. 127 Del Mar (2016), at 125. 128 Ibid. 129 See eg Bartolus, In primam Digesti Novi partem Commentaria, ad D.42.2.17.1 nos 4 and 5. Bartolus comments: ‘I ask, how many types of ownership are there? A certain doctor from Orleans, as recounted by that German doctor who held a repetition here yesterday, says there is only one type of ownership. But there are two. And I prove this in referring to [C.11.62.12.1] where it is said that the emphyteuta is the owner. And yet someone else remains owner, that is to say the lessor (concedens) [C.4.66.1–2]. And if there are two owners there must be different types of ownership because the same ownership cannot belong to two persons as stated in [D.13.6.5.15]…’ (translation Thomas Rüfner, with some minor modification by Geoffrey Samuel). 130 For an historical overview see Baker (2019), at 185–205. 125 126

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both theorists and historians are discourse writers; whatever the epistemological strength of, say, Blackstone’s Commentaries or Kelsen’s pyramid of norms, neither of these texts is actually the ‘law’ itself. This means that the theorist and the legal historian are often engaged in the same enterprise, namely making sense of an object of investigation (law, whether past of present) using notions, concepts and (or) frameworks that are fashioned from the outside, so to speak. The historian might well be using a contemporary construct to understand the past – one thinks of works within the common law tradition, which reinterprets the past using notions such as the ‘law of obligations’ or ‘ownership’131 – while the theorist might well be using constructions from the past to fashion a contemporary theory. As Professors Halpérin and Brunet show, the modern state has been constructed from concepts going back to Roman law (and see Chapter 8, section 6).132 The same can be said for notions such as ownership and the idea that contract has the force of legislation between the parties (Chapter 8, section 8).133 At the level of discourse on law, then, the theorist and the historian often come together, even if they are unaware of it. This coming together generates another reason why the distinction between law and discourse on law is important. The distinction represents, for the most part at least, the distinction between the practice and the teaching (including explanation) of law. This of course is a distinction that goes back to Roman law: the student textbooks (institutiones) set out the law not just in a descriptive and abstract manner but, with Gaius, in a hierarchical and systematised way according to the seminal plan of personae, res and actiones (Chapter 3, section 3). Was this plan the ‘law’ or was it a discourse on the law? The Roman answer to this question would appear to be that these books were simply discourses on the law. Indeed, there is a clear text stating that general rules (regulae iuris), the most important of which were collected together at the end of the Digest, did not represent the law; they were merely brief summaries of it (Chapter 4, section 3).134 In the late Middle Ages, when the Roman materials were rediscovered, the distinction between law and discourse remained, but there had been a shift. The Institutes were no longer treated as a discourse on the law

And see also Ernst (2019), at 109. Halpérin & Brunet (2016), at 244. 133 Atias (2009), at 129–30. The definition of ownership in the Code civil art 544 is taken almost directly from Bartolus: In primam Digesti Novi partem Commentaria, ad D.42.2.17.1 no 4. The idea of contract as la loi between the parties is found now in CC art 1103 (ancient art 1134) and is taken from J Domat, Les loix civiles dans leur ordre naturel (2nd ed, 1695; Nouvelle édition 1735), Part 1, Book 1, Title 1, Section 2, para VII. Domat cites as authority D.16.3.1.6 which indeed uses the term legem (lex) but the Roman jurist probably did not use the word to mean loi (see Chapter 8, section 8). 134 D.50.17.1. 131 132

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but as part of the civil law itself, in turn attracting glosses and commentaries from the medieval jurists. Gradually these glosses and commentaries became part of the learned law; as Jones says, ‘what began by being argumentum ab veritate became argumentum ab auctoritate’.135 The process did not stop. With Doneau, the Institutes scheme started to replace the plan in the Digest and Codex (see Chapter 5, section 5), with the result that, with codification in the nineteenth century, the plan itself became a fundamental aspect of the ‘law’ (that is, part of the code itself). Post-Doneau discourses on law – in particular, Domat’s Loix civiles and Pothier’s various books – equally became absorbed into the Code civil, which acted as a ‘restatement’, so to speak, of the civil law itself. But this ‘restatement’ was more than this; it was a deliberate attempt to cut off ‘law’ both from ‘discourses on law’ (Napoléon tried to forbid commentaries on the code) and, of course, from law’s history.136 This distinction between law and discourse offers perhaps one of the most potent tensions in understanding the ambiguous attitude of codifiers (‘theorists’) towards history. They wanted to banish history and start afresh. As Christian Atias said, the loss of history is flagrant, and so while there are a good many histories of law, everything conducts itself as if the law never had a history.137 ‘It [law] is’, he asserted, ‘studied and correlatively is formed outside of time’.138 In the civil law world, what now becomes the ‘law’ is the system of rules; the rule has been elevated au premier rang and is presented as if it contained and absorbed the whole of the law.139 Accordingly, the role of the judge in, for example, France is ‘to decide the litigation in accordance with the rules of law which are applicable to it’.140 Much the same is true of English law: the judge’s ‘primary duty […] is to ascertain the statutory provisions and the principles stated in decisions that are binding on him’.141 Law is about statutory rules and precedent principles.142 Legal theorists of the previous century simply reflected this epistemological and ontological idea: ‘law’ is, for example, the union between primary and secondary rules.143 The rule (including the more abstract version, the principle) is what matters and a principal role of the theorist thus becomes identifying the sources of such rules and their

Jones (1940), at 19. Van Caenegem (1992), at 1. See further with regard to the common law: Sandberg (2021). 137 Atias (2009), at 204–5. 138 Ibid, at 205. 139 Ibid, at 167. 140 Code de Procédure civile art 12. 141 Vinelott J in Derby & Co v Weldon (No.5) [1989] 1 WLR 1244, at 1250. 142 Sandberg (2021). 143 Hart (1961). 135 136

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differentiation from non-legal rules. The discourse on law – those regulae iuris identified by the Roman jurists – has over the centuries become the ‘law’ itself, and this is surely one reason why a dialogue between legal theorists and legal historians is perhaps not traditionally seen as necessary. What started out as an exercise to make law easy to absorb for students and perhaps non-lawyers has, then, ended up as the law itself. This, clearly, was not a revolution. Nor, perhaps, was it even progress.

7.

BACK TO BALDUS VIA THE NATURAL LAWYERS?

There is yet another reason why the tension between law and discourse on law is important. This is to be found in the need to justify, in epistemological terms, the authority of law. This was not a problem in the medieval period, since texts had an absolute authority in themselves (legere in philosophia),144 especially if the text could be associated with the authority of God (in the case of law via Justinian) (Chapter 5, section 1). In addition, the existence and authority of law was tied to the notion of society itself: ubi societas ibi ius. With humanism this authority broke down; the nominalist revolution of the Middle Ages had gradually led to the idea that society consisted of individuals and each of these individuals had individual rights (Chapter 7, section 9). How could law retain its authority in this changed epistemological and ontological outlook? If one looks at the discourses on law during the sixteenth and seventeenth centuries one sees, as Henry Maine observed, a reform of the law books.145 Rather than long and detailed commentaries on the Roman sources, we have seen that there developed a literature which claimed to restate Roman law in both synchronic and axiomatic form (Chapter 5, section 6). This was to have an impact even on the common law, where there developed a literature based on what Michael Lobban calls ‘right’ or ‘abstract’ reasoning.146 ‘This new methodology’, says Professor Lobban, ‘was summed up in the preface to Sir William Jones’s Essay on the Law of Bailments’. Here ‘he stated that he had sought to explain the subject analytically (tracing ‘every part of it up to the first principles of natural reason’ or ‘the plain elements of natural law’), historically (to show how those principles were recognised by other nations) and synthetically (setting out clear rules)’.147 As Michael Lobban points out, ‘[s]uch writers were often influenced by models taken from civilian texts’.148 These civilian Riffard (2013), at 115. Maine (1890), at 363. 146 Lobban (2016), 224–5. 147 Ibid, at 225. 148 Ibid. 144 145

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writers belonged to the school of natural law, but what this meant was not some scheme ultimately traceable back to God; it was a scheme founded in natural reason149 and owed much more to mathematical thinking (see Chapter 5, section 6). There were fundamental principles and the consequences flowing from these principles were discoverable using mathematical logic. The epistemological validity underpinning law had therefore shifted. It was no longer the authority that attached to a sacred text, but the rationality and coherence of the system of axiomatic principles and the sub-principles that could be deduced from the axioms. Yet, what were these ‘fundamental’ or ‘scientific’ principles? Ian Williams provides one insight: they were the regulae iuris or maxims of law which, by the sixteenth century, had been elevated from being mere summaries – that is to say, discourses on the law itself (which was seemingly the case for the Romans)150 – to become fundamental principles of legal science (Chapter 4, section 3). As Ian Williams notes, ‘[t]o claim status as a science, a discipline needed to fulfil the Aristotelian criterion of being based upon known principles’ and maxims ‘provided these principles’.151 As one eighteenth-century civil law writer put it, ‘if all the other law texts make up all the material of which the temple of Justice is composed, it can be said that the Rules [that is, the regulae iuris] are the base and foundation of this building’.152 As far as this civilian writer was concerned, these maxims were not just discourses on the law, for ‘all the Rules make up the laws, but all the Laws do not make up the rules’.153 Given the frequent references to the principles underpinning the natural sciences made by the jurists of the ius naturale school, it is hardly surprising that these maxims should assume something of an epistemological status. Yet, did they represent the ‘law’, or were they a theoretically orientated discourse on the law? In the civil law world these principles (regulae) became the ‘law’ with codification. However, as various French writers have shown, the developments after codification in France are more complex in that the discourse writers embark on a process that, from the historical viewpoint, is not dissimilar to that which followed the rediscovery of Roman law in the eleventh century.154 There is first a period of textuality; that is to say, a period where the writing of the jurists on law regards the code as perfect and complete and the discourses Jones (1940), at 105–6. See D.50.17.1. 151 Williams (2016), at 204. 152 JB Dantoine, Les règles du droit civil, Dans le même ordre qu’elles sont disposées au dernier Titre du Digeste (1710), preface. 153 Ibid. 154 Jestaz & Jamin (2004), at 91. 149 150

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simply repeat and paraphrase the code following the order of the articles. ‘Everything happens’, says Veronique Champeil-Desplats, ‘as if the work of scientific construction on law has been exhausted with the act of codification: the jurists have nothing more to add’.155 A second period follows which is one of limited and literal interpretation; once the text in question has been clarified, it is regarded as an axiom to be applied in a deductive manner.156 A third period sees a return to the idea of principles, but not as regulae or axioms existing in some ius naturale domain superior to the ius civile world of the code. Legal discourse was now a world of science. And ‘[t]hanks to this science, the explorers of the code – who have now become in their own eyes scientists – can build a legal system and a harmonious system containing now neither gaps nor uncertain zones: there will always be a principle which they will be able to use when the texts remain silent on such or such practical question’.157 These scientific principles are not external to the code; they are internal to it. It is not a discourse on the law but an explanation of the inner workings of the law itself.158 Consequently, from the viewpoint of legal method, this was the period of a ratio legis founded on a logical process where solutions are deduced from an axiomatic principle.159 Not only is there nothing but the law (and thus no separate discourse on the law); there is equally the epistemological authority of complete coherence within the context of a supposedly scientific mentality.160 A fourth period is one in which the formalism that resulted from this axiomatic method becomes both more entrenched thanks to legal theory and yet increasingly challenged, if only gradually, by a growing awareness of the importance first of induction and second of a different scheme of intelligibility, namely that of functionalism (Chapter 6, section 1). In other words there is an increasing separation, once again, between the ‘law’ and the ‘discourse on law’. What perhaps is different in terms of this new separation is that the discourse on law is more conscientiously philosophical in that it is either searching for a synchronic and a priori definition of law from an internal position or for an explanation of law through the vehicle of other disciplines.161 Moreover, in re-opening the gap between law and discourse, the way is also opened for an interdisciplinary attitude. The way is open for legal knowledge to progress thanks to progression in other disciplines. In the common law world this is

157 158 159 160 161 155 156

Champeil-Desplats (2016), at 78. Ibid, at 78–9. Jestaz & Jamin (2004), at 94 (emphasis in original). Ibid, at 94–5. Champeil-Desplats (2016), at 79. Ibid, at 109. Champeil-Desplats (2016), at 122.

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certainly what happened during the previous century, and continues during this century. It may, in the future, happen in the civil law world as well.162

8.

CONCLUDING REMARK

Is this progress in respect of legal knowledge itself? Dan Priel indicates that this depends upon how one defines such knowledge. He writes that many jurists and lawyers think ‘that law is in some important sense autonomous from other disciplines, which means that the law has its own solutions to certain problems’.163 This ‘makes appeal to other disciplines at best unnecessary and possibly confusing’.164 Indeed, he says, interdisciplinary approaches are seen as the ‘enemy’ and ‘cannot contribute to the study of law’.165 Now, it has to be stressed that, probably, many academic lawyers, at least in the common law world, do not share this outlook, and it is these academics who will contribute at least to progression, if not to revolutions, in legal (construed widely) knowledge. Progression is in the hands of the ‘law and…’ schools. However, the jurists and lawyers that Priel describes will not, as the chapters in this present work have hopefully indicated, contribute to progression in legal knowledge. In fact, they might well contribute to regression (see Chapter 9). Whether any legal scholarship has contributed to legal knowledge in a cumulative way is more delicate. Do jurists and lawyers know more today than Ulpian knew, or Baldus knew, or the Renaissance and natural lawyers knew? Possibly – but a rethinking of historical jurisprudence suggests possibly not.

164 165 162 163

See in particular Muir Watt (2019). Priel (2019), at 166–7. Ibid, at 167. Ibid (emphasis in original).

Conclusion Have there been scientific revolutions in law? Has there been progress in legal knowledge from Roman to modern times? Has there been an accumulation of legal knowledge? In other words, do modern jurists know more than Roman, medieval and Renaissance jurists? Only historical jurisprudence can answer these questions and so one important, very general conclusion is that historical jurisprudence should now be considered to be the basis of legal epistemology. What is legal knowledge? One can only answer this question by first considering what legal knowledge has been. Some may dispute this assertion and claim that it is possible to construct an a priori synchronic model of legal knowledge. But, as the previous chapters attempted to establish, such a model is built out of ‘bricks’ formulated long ago, their histories hidden behind apparently ahistorical terms such as norms, rules, rights and the like. An a priori theory about the nature of law cannot escape the past. In fact, those who argue that legal theory can somehow escape sociology, anthropology and history are likely to end up making statements that might appear philosophical, but actually turn out to be rather trivial.1 This said, the position is more nuanced, and so a number of points need to be re-stressed. The first is that much depends on how one defines law and legal knowledge. If one takes a narrow formalist view – law is a system of rules (or whatever) isolated from other non-legal norms (or concepts or whatever)2 – it is difficult to escape from the conclusion that developments in the accumulation of knowledge (as opposed to the accumulation of legal texts) in law have been achieved only by mining disciplines outside of law.3 Certainly there appears to have been progress within the discipline of law with respect to its language, its concepts and its categories. But are these real developments at the level of social science itself, or are these developments only for the Del Mar (2016a), at 32–3. See Priel (2019). 3 This may even be true today at the professional stage of legal education which, when compared with the past, may well display differences, for example as a result of technological changes in data storage and retrieval, office management methods and so on. Are these development really ones that have taken place within the discipline of law or are they development which have taken place outside law but impinge upon the way lawyers go about their business? In fact at this professional level the emphasis is now on skills: see Earis (1993). 1 2

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closed community des croyants? Is this progress really any more significant for social science knowledge than increased sophistication of structural models in theology or astrology? Does an ever more rigid distinction between rights in rem and rights in personam, or between patrimonial (law of things) rights and non-patrimonial (law of persons) rights, have any real significance in social science? Certainly, such conceptual and linguistic developments – one thinks of the work of Hohfeld (Chapter 7, section 9)4 – have given rise to structures that have aided thinking in law and perhaps this ought not to be underestimated. There has been refinement if not progress. A second point concerns law as a technical language. Historians such as Walter Ullmann and Donald Kelley have made an overwhelming case that in the past, law and jurisprudence was the language of social and political sciences. But have these days not gone? Has not the position been reversed and it is the social sciences that are now informing law?5 No doubt some legal philosophers will be outraged at the suggestion that their theories have not contributed to an ever growing accumulation of knowledge about law and its normative world. Yet are not all the great works of legal theory really just refining or reworking ideas from the past and (or) just importing into law intellectual progress made elsewhere?6 Is this not the reason why books on jurisprudence have abandoned chapters on legal concepts and categories? Let us put the question differently. Imagine the super-human judge (Hercules) invented by Dworkin had never studied law but was completely and super-humanly educated in all the social sciences and humanities. Would he not be just as capable as any judge educated in a civil or common law faculty? Perhaps he would not. But what kind of technical training in law would he need to become competent? And would this technical training be richer, knowledge-wise, today than it would have been in a medieval law faculty? Could not such a potential judge just spend his time reading Ulpian, Bartolus and, perhaps, Leibniz to become competent in legal reasoning? (Given his social science education, he would not of course need to read Felix Cohen and Jerome Frank.) The point to be stressed here is not one that is critical of these individual theorists; the problem is the authority paradigm that governs the professional view of the discipline (Chapter 2, section 2). This paradigm is restrictive in that it has resulted in a faculty that is, or at least was, largely enslaved to the outlook of the profession. The professional bodies were once able to rule that this or that law degree was not adequate to permit exemption from professional

Hohfeld (1919). One good example in the area of comparative law is Riles (2019). 6 ‘The law lives by its very long memory, which differentiates it from most of the other disciplines’: Jestaz & Jamin (2004), at 254. 4 5

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examinations.7 Those days, in England at least, may be receding (if not over, at least in England), but law is a discipline in the traditional sense of the word ‘discipline’ and probably a good many academics, certainly at least in the civil law world, subscribe to the professional outlook.8 In the social sciences, operating within the inquiry paradigm, serious controversy may or may not in the end lead to a scientific revolution. In law a serious controversy is resolved either by non-resolution (it remains as a tension within legal knowledge) or by an excommunication that can be more or less subtle.9 This need not be the case if legal knowledge is defined widely, but if legal knowledge remains quite closely tied to the professional outlook, doctrinal legal autonomy will probably continue to determine the epistemic status of legal knowledge. As Daniel Priel explains: To be able to justify their role, judges need to be able to provide justifications for legal decisions that do not rest on ‘political’ considerations. So understood, autonomous legal doctrine is a set of argumentative and decision-making techniques that provide judges to develop the law, but can be seen as politically neutral.10

A third point, which follows on from the second, concerns legal education. What many law students learn, then, is just a mass of existing law – rules – together with a limited number of formal methods themselves often reduced (not always successfully) to a set of normative propositions.11 This training is not valueless. But the medieval law student would probably not feel that out of place in a modern law faculty (although from a historiographical perspective it is most dangerous to say this). Law, like theology, is trapped now in an authority paradigm which means that cumulativité is probably the privilege only of those disciplines functioning within an inquiry paradigm. It was, perhaps, not always so, but the history of science and the social sciences is partly a history of escaping from the authority of texts. Law, for all the skills it teaches, will never be able to do this. All that it will be able to do is to plead for more for-

See Cownie & Cocks (2009), at 216–26. See Jestaz & Jamin (2004), at 195 footnote 28. One might note how the Law Society once threatened to sue Professor Peter Birks in defamation for some academic comments in The Reporter (SPTL Reporter No 9 Winter 1994, at 28–9) suggesting that members of the profession were like ‘Stalinist commissars’: Cownie & Cocks (2009), at 221–2. 9 Or of course a threat of defamation proceedings. And see Jestaz & Jamin (2004), 195 footnote 28. 10 Priel (2019), at 184. 11 For example with respect to statutory interpretation: see Twining & Miers (2010), at 243–5. And see generally on the shortcomings of legal education: Sandberg (2021). 7 8

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malism and coherence in a search for the, possibly elusive, certainty that the rule of law seemingly requires (cf Chapter 9). The problem is that this formalisation has nowhere to go, at least on its own. All the discipline can do is produce ever more law, often in the form of textual legislation and regulation and sometimes (often?) without the underpinning of empirical research.12 It is a discipline prone to the accumulation of texts rather than the cumulation of knowledge, although this is not to suggest that lawyers cannot be innovative in the use of their concepts. There has been over the centuries some conceptual enrichment, especially at the level of theory programmes, and this enrichment might continue in certain limited ways.13 New angles on the cases, statutes and texts, perhaps informed by knowledge from other disciplines, will result in scholarly and useful monographs. Yet even Dworkin’s theories do not look quite so innovative once one has studied Doneau, Domat and the other ius commune and natural lawyers. And the neo-formalists are probably little more than a modern echo of the Pandectists. It has all been done before (and possibly better, some cynics might say). Finally, then, to return to the primary questions. What is, or amounts to, legal knowledge when viewed from the perspective of social science epistemology? Have there been scientific revolutions in law? Has legal knowledge progressed over the centuries? Is legal knowledge cumulative? There are two approaches that can be adopted in attempting to answer these questions. The first is the diachronic point of view, in which the contribution made by jurists and legal texts to intellectual, political and social thought is likely to emerge as measurable (unless one views the work of later jurists either as just refining Roman concepts and structures or as importing knowledge from outside law).14 The second is the synchronic point of view. Doctrinal lawyers and judges, when they argue and reason, shift between conceptual inference models (a sort of metaphysical causal scheme), hermeneutics, dialectics, actionalism (the ‘reasonable person’) and functionalism. And while these different schemes of intelligibility have helped provoke new theories, the social scientist might well ask if these theories are creating an ever expanding field of juristic knowledge or are just a little circular when not dependent upon advances in disciplines other than law. The jurist might object, arguing that there has been a slow but continual enrichment of legal knowledge itself at the level of theory. Yet if the social 12 See eg House of Lords European Union Committee, European Contract Law: the Draft Common Frame of Reference (11th Report of Session 2008–9, HL Paper 95), Minutes of Evidence, at 9 (Q20). 13 Christian Atias, as we have seen, regards this as a process of sedimentation of knowledge: see eg Atias (1994), at 66–77; Atias (2009), at 172–209. 14 See eg Kelley (1990). And see eg a work such as Gordley (1991) and (2013).

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scientist asks whether, say, Ulpian, Bartolus and Domat would be intellectually unable to function in a contemporary law faculty, the jurist may well have to think carefully before responding that they could not. Of course, even if the jurist admits that they could function well enough, this does not condemn law as a discipline. It simply raises the question whether legal knowledge is cumulative.15 The answer that historical jurisprudence suggests is that if one thinks that knowledge of law is the kind of doctrinal knowledge used by judges to justify their decisions, then it is difficult to think that there has been much progression in terms of cumulativité. There has been refinement, no doubt. What there has not been is any kind of paradigm shift or revolution of the type envisaged by Thomas Kuhn. Indeed, if there had been, legal knowledge would not look like the knowledge presented in most introductory textbooks to be found in Europe today. But given law’s history, given its embeddedness in the authority paradigm, it is probably unsuitable even to ask if there have been scientific revolutions in law. Historical jurisprudence provides us with a rich history, but, for those who reject interdisciplinarity, it offers a bland future. Law as an intellectual construction may be infinitely more socially and politically useful than astrology, but asking if there have been scientific revolutions in law, or if legal knowledge is cumulative, is like asking the same questions about that topic.

15 Perhaps it would be better to say continually cumulative since it is arguable that Roman law scholarship certainly contributed to social science scholarship in the late Middle Ages, for at ‘no other time did pure scholarship affect society and government to the degree that the civilians – and later also the canonists – did in the centuries between the Investiture Contest and the Reformation’: Ullmann (1975), at 79.

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Index of names Berthelot, Jean-Michel 12–13, 18–19, 30, 51–53, 56, 275, 281, 282–283, 285, 286, 291 Birks, Peter 21, 22, 23, 25, 49, 85, 146–147, 185–186, 192, 199, 230, 236, 237, 247, 260, 268, 272, 274, 275, 294, 297, 301, 304, 308, 314, 329 Blackstone, William (Sir) 127–128, 197, 256, 257, 267, 314, 319, 321 Blanché, Robert 36, 37, 62, 226, 283, 288, 296 Bonaparte, Napoléon 322 Boudon, Raymond 150 Bouriau, Christophe 48 Bouvier, Alban 279, 288, 290 Bovill (Chief Justice) 132 Bracton, Henry de 320 Bramwell (Lord Justice) 259 Brett (Justice) 133 Brown (Lord) 146 Brunet, Pierre 321 Burelli, Thomas 153, 156

Abelard, Pierre 53, 106 Accursius (of Bologna) 115, 215, 249, 292 Affergan, Francis 290–291 Ahrens, Henri 173–174 Aleiatus, Andreas 114, 115 Alfenus, Varus 71, 73, 74, 76, 93, 96, 102 Andrieux, Jean-Paul 227 Anker, Kirsten 158 Aquinas, Thomas 54 Argou, Gabriel 314 Ariely, Dan 14 Aristo, Titius 73, 74 Aristotle 32, 109, 110, 111, 112, 216, 232, 249, 253, 267, 324 Atias, Christian 6, 26, 28, 248, 262–263, 264, 277, 303–304, 319–320, 322, 330 Austin, John 157, 234, 270, 301 Azo (of Bologna) 40 Bachelard, Gaston 10 Bacon, Roger 112 Baker, John (Sir) 2, 5, 130, 131, 179, 248, 255–256, 268 Baldus, Christian 82, 182 Baldus de Ubaldus 70, 77, 83, 88, 96, 111, 112, 116, 122, 176–177, 180, 183, 184, 200, 205, 206, 210, 214, 216, 218–219, 310, 326 Barker, Kit 224–225, 226 Bartolus de Saxoferrato 26, 74, 102, 107–108, 177, 178, 179, 180, 216, 267, 274, 275, 292, 302, 319, 320, 321, 328, 331 Bassianus, Johannes 164 Bell, John 278 Bellucci, Lucia 154 Bergel, Jean-Louis 272, 298–299 Berman, Harold 248, 249, 253, 293

Caenegem, Raoul van 241 Cambacérès, Jean-Jacques 178, 314 Canning, Joseph 215, 216 Carbasse. Jean-Marie 53–54 Castro, Paulus de 83, 112, 172 Celsus, Iuventius 169, 183, 185, 230 Champeil-Desplats, Véronique 38–39, 233 Cicero, Marcus Tullius 64, 87, 118, 119, 190, 191, 192, 228, 229, 230 Cockle, Ernest 198–199, 201 Cohen, Felix 135–136, 138–139, 141, 142, 144, 226, 328 Connolly, Anthony 153, 157, 158 Conring, Hermann 123 Cooke (Lord) 141 Cotterrell, Roger 313, 316, 317, 318 363

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Cowell, John 314 Cownie, Fiona 306 Cujas, Jacques 113, 115, 177 Currie, Adrian 17 Dantoine, Jean Baptiste 324 Darwin, Charles 21, 192 Decius, Phillipus 219 Del Mar, Maks 43, 46, 158–159, 320 Denham (Justice) 90 Denning (Lord Justice) 142, 145, 236, 269 Descheemaeker, Eric 23 Desjeux, Dominique 45, 46, 283, 286, 292, 318 Domat, Jean 124, 125, 126, 186, 208, 219–220, 221, 267, 268, 274, 275, 278, 321, 322, 330, 331 Doneau, Hugues 25, 117–118, 119–120, 121, 177, 183, 184, 186, 192, 203, 230–231, 251, 254, 267, 284, 295, 322, 330 Douaran, François 118, 119, 303 Drake, Joseph 128, 236 Duff, Patrick 84 Dworkin, Ronald 31, 37, 143–145, 146, 158, 301–302, 304, 305, 311, 312, 328, 330 Eagleton, Terry 306 Einstein, Albert 8, 11, 260, 261, 270 Ernst, Wolfgang 57, 72–73 Errera, Andrea 109–110, 112 Fekete, Balázs 6, 33, 270–271 Fillieule, Renaud 150 Fleming, Anne 148, 149 Forray, Vincent 22–23, 244 Foucault, Michel 19, 289 Fournier, Pascal 150, 151 Frank, Jerome 142–143, 144, 236, 237, 328 Friedman, Lawrence 313 Gaius 21, 65–69, 84, 85, 91–92, 95, 103, 120, 125, 161, 170, 171, 172, 181, 185, 193–194, 199, 205, 206, 216, 231, 267, 279, 281, 294, 295 Gammaro, Pietro 116–117

Garapon, Antoine 154 Gell-Mann, Murray 14 Gény, François 248, 263 Giuliani, Adolfo 41 Goff, Robert (Lord) 8, 9, 13, 129, 141, 260, 261, 262, 267, 269 Gordley, James 2, 6, 77, 78, 87, 115, 149, 174, 208–209, 225, 226, 243, 252–253, 256 Gordon, Robert 317–318 Goudkamp, James 223, 234, 235, 237, 241, 242, 243 Granger, Gilles-Gaston 21–22, 24, 318 Gratian (of Bologna) 53–54 Grazadei, Michele 209 Griffith, John 38 Grotius, Hugo 122, 126, 172, 218 Häcker, Birke 236–237 Hackney, Jeffrey 234, 246 Haldane (Lord) 25 Halpérin, Jean-Louis 321 Hart, Herbert 37, 38, 157, 158, 161, 270, 310, 322 Hedley, Steve 38, 226, 236, 237, 243, 245, 266–267, 297 Heineccius, Johann Gottlieb 124–125, 126–127, 135, 177, 178, 186, 245 Hendry, Jennifer 160, 161 Hibbert, Nembhard 198–199, 201 Hobbes, Thomas 216–217 Hodge (Lord) 207–208 Hoecke, Mark van 35 Hogg, Martin 169 Hohfeld, Wesley 186–188, 242, 328 Ibbetson, David 2, 311 Jacobus de Arena 108 Jamin, Christophe 27, 126, 263, 280–281, 306, 307, 325, 328 Jestaz, Phillipe 27, 126, 263, 280–281, 306, 307, 325, 328 Jhering, Rudolf von 139, 236 Johnston, David 95, 96 Jolowicz, Herbert 5, 64, 67, 69, 84, 93, 95, 192–193, 209, 212, 218, 308 Jones, Gareth 8, 9, 13, 260, 261, 262, 267, 269

Index

Jones, Walter 5, 6, 114, 115–116, 123, 139, 148, 171, 173, 212–213, 265–266, 270, 300, 301, 302–303, 307, 308, 309, 322 Jones, William 323 Julianus (Julien), Salvius 72, 73, 79–80, 107 Julien, Jean Joseph 171, 173, 196, 314 Justinian 57, 104, 105, 114, 118, 267, 292, 323 Kahn-Freund, Otto (Sir) 164, 304 Kant, Immanuel 32, 240 Keating (Justice) 133 Kelley, Donald 2, 5, 6, 30, 55, 113, 114, 251–252, 271, 291–292, 293, 294, 295, 296, 304, 328 Kelsen, Hans 36, 37, 161, 248, 263, 264, 265, 280, 301, 310, 321 Keynes, John Maynard 306 Kingdon (QC, counsel) 131–132 Kocourek, Albert 243 Kuhn, Thomas 2, 3, 4, 6–33, 37, 56, 106, 162, 247, 248, 251, 256, 257, 262–263, 269–273, 287, 331 Labeo. Marcus Antistius 77, 91 Lafargue, Régis 153, 156 Lancellotti, Giovanni Paolo 194–195, 314 Lasaffer, Randall 105, 175 Laws (Lord Justice) 133 Lawson, Frederick 71–72, 81, 92 Legrand, Pierre 175–176, 240, 243, 244, 316–317 Leibniz, Gottfried Wilhelm 123–124, 126, 172, 245, 308, 328 Lenclud, Gérard 19, 288–289, 290, 302, 305 Lobban, Michael 2, 127, 128, 257, 323 Loysel, Antoine 195–196, 314 Luhmann, Niklas 305 Macdonald, Roderick 155 Maclean, Ian 5, 89–90, 112, 118, 248, 253, 254, 292 Magritte, René 22 Maine, Henry (Sir) ix, 1, 43, 127, 183, 227, 234, 295, 296, 297, 323

365

Maitland, Frederick William 2 Marcianus (Marcian), Aelius 170, 206 Martino, Francesco de 42–43 Mathieu, Marie-Laure 22–23, 24, 48 McCrum, Robert 12 Mela, Fabius 71 Milsom, Stroud Francis Charles 2, 5, 320 Minkkinen, Panu 162 Modestinus, Herennius 97–98 Mofa, Matteo Gribaldi 110–111, 112, 113, 124 Monateri, Pier Giuseppe 5–6, 98–100 More, Thomas (Sir) 8, 260 Murphy, Tim 296 Nerva, Marcus Cocceius (filius) 179 Neuberger (Lord) 207–208 Newton, Isaac (Sir) 8, 11, 260, 261, 270, 292 Ockham, William (of) 112, 218 Odofredus (of Bologna) 177 Ogien, Ruwen 286 Oldradus de Ponte 108 Osler, Douglas 115 Papinian (Papinianus), Aemilius 170, 180 Parke (Justice) 131 Paulus (Paul), Iulius 65, 67, 78, 82, 86–88, 90, 96–97, 170, 176, 179, 180–181 Pedius, Sextus 86 Perelman, Chaïm 268 Philpott (counsel) 132 Pimont, Sébastien 22–23, 244 Pomponius, Sextus 61, 73, 95, 96, 98, 190 Popper, Karl 13, 277, 287, 290 Portalis, Jean Étienne Marie 125 Pothier, Robert-Joseph 125, 126, 186, 220, 314, 322 Prévost, Xavier 113 Priel, Dan 226, 237–241, 326, 329 Pringsheim, Franz 297 Proculus, Sempronius 71, 75 Provost, René 150–151, 155–156 Pucta, Georg 128, 236, 245 Puddefoot, John 15

366

Rethinking historical jurisprudence

Pumain, Denise 289, 290

Twining, William 264

Quillet, Jeannine 218

Ullmann, Walter 2, 5, 53, 60, 163, 214, 216, 217, 295, 300, 301, 328, 331 Ulpianus (Ulpian), Domitius 42, 59, 60, 64, 72, 73, 74, 80, 82, 83–84, 86, 92, 94, 96, 97, 98, 102, 107, 169–170, 171, 172, 174, 176, 177, 179, 185, 190, 192, 212, 219, 220, 221, 230, 231–232, 268, 272, 274, 275, 310, 326, 328, 331

Radcliffe (Lord) 261, 262, 264, 267 Rampelberg, René-Marie 220–221 Reese-Schäfer, Walter 305 Renner, Karl 164 Revel, Jacques 289, 291, 293 Rey, Alain 166, 167–168 Riles, Annelise 135 Robertson, Andrew 39, 223, 234, 235, 237, 241, 242, 243 Rochfeld, Judith 185, 188–189 Savigny, Friedrich Carl von ix, 1, 245 Scaevola, Quintas Mucius 61, 190 Schiavone, Aldo 5, 43, 61, 62–63, 76–77, 94, 95, 98, 99, 165, 171, 190–191, 227–228, 229 Servius. Sulpicius Rufus 75, 76 Severus, Septimus 95 Simon (Lord) 146, 265 Sordi, Bernado, 213–214 Stein, Peter 1, 2, 5, 41, 46–47, 64, 66, 67, 87, 111, 119, 184, 229, 294, 296 Stevens, Robert 43, 241–243 Strömholm, Stig 307–308 Tamanaha, Brian 1, 276, 311–312, 313 Teubner, Günther 162, 315–318 Thatcher, Margaret 204 Thomas, Yan 81, 82 Tiercelin, Claudine 287 Tierney, Brian 2, 184, 215 Toddington, Stuart 312 Tomlins, Christopher 317–318 Toulson (Lord), 58 Tribonian 58, 59 Tryphoninus, Claudius 80–81 Turamini, Alessandro 117, 118, 232

Vacarius, Roger 164–165 Vaihinger, Hans 16, 20, 47, 48 Valcke, Catherine 161 Valide, Bernard 44, 290–291 Valla, Lorenzo 113, 251, 252 Venuleius, Saturninus 181 Vick, Douglas 28 Villey, Michel 103, 120, 122, 183, 184, 231, 296 Vinelott (Justice) 264–265 Waddams, Stephen 5, 145, 238, 239, 240, 245, 299, 307, 312–313 Walliser, Bernard 274, 278, 279, 281, 282, 291 Warby (Justice) 130 Watson, Alan 63–64, 159–160, 162, 313–315 Webb, Charles 49, 147 Weir, Tony 140, 221–222, 239–240, 306 Whitman, James 98 Wigmore, John 243 Willes (Justice) 132, 133 Williams, Ian 324 Wolff, Christian von 122–123 Zasius, Ulrich 172 Zimmermann, Reinhard 175, 176, 311

Index of subjects abstraction 62 philosophical 129 abusus 302 accident barber 71 Capitoline Hill (on) 70–71 pruner 86–87 traffic 209, 278 account 210 actio 43, 67, 71, 74, 75, 86, 108, 183, 210, 221, 222, 227, 228, 230, 259, 267, 294, 321 furti 83, 85 in factum 75 in personam 176, 182, 295 see also action in rem 176, 177, 182, 205, 295 see also action quasi ex contractu see contract; obligation quasi ex delicto see delict; obligation action 74, 194, 230, 234, 268 cause of 210–211, 258, 261 chose in 206 debt see debt ex contractu see obligatio; obligation form of 41, 224, 227, 234, 248, 256, 258, 259, 261, 262, 267, 297 in personam 65, 66, 67, 69, 176, 182, 193 in rem 65, 66, 67, 68, 69, 70, 176, 177, 182, 185, 193 legal 23, 65, 66, 86, 194 money had and received 261 money paid 261 personal 199 private 210 public 210 quantum meruit 261 revindication 211

see also action; remedies actional see schemes of intelligibility actor 30, 31, 52–53 legal 277–278, 279 actor 216, 217 adoption 82, 84 adultery 117 aequitas 89, 163 agere 67, 70, 71, 74 agreement 49, 50, 86, 96, 197, 218–220 legislation (force of) 197, 219–220 see also contract alchemy 115 algebra 135 algorithm 73, 102, 106, 143, 229 alien enemy 199 anachronism 293 analogy 57, 63, 73, 75–77, 86, 94, 101, 103, 131, 164, 229, 240, 290, 296 see also reasoning analysis 27, 248, 269, 307 dialectical see dialectics formalist see formalism functional see functionalism historical 113 Hohfeld see Hohfeld level of 288, 318 mathematical see mathematics method of see method methodology rational 119 rights see right scientific see science social science see science (social) synthesis see synthesis textual see interpretation, text see also schemes of intelligibility animal(s) 91, 102, 188, 232 rights 188 wild 179 animus 108, 109, 181 anomaly 11 367

368

Rethinking historical jurisprudence

answer right 130 anthropology 19, 21, 46, 288–291, 302, 305, 327 approach axiomatic see axiom, axiomatic black-letter 269 bottom-up see reasoning conceptual 31 critical 162 deductive see deduction diachronic 225, 291 doctrinal 269 formalist see formalism functional 248, 269 see also functionalism hermeneutical see hermeneutics historical see history holist see holism individualist see individualism nominalist see nominalism positivistic see positivism practitioner 306 realist 31 reductionist see reductionism scientific see science structural see schemes of intelligibility; structure synchronic 225, 281 systems see system top-down see reasoning see also argument; method; schemes of intelligibility arbitration 258 arbor 230 actionum 230 architecture internal 288 sociology (of) 288 argument analogical see analogy authority (from) 302 coherence of see coherence counsel’s 132 dialectical see dialectics; schemes of intelligibility Dworkin see Dworkin (Index of names) functional 269

see also functionalism; schemes of intelligibility oral 133 persuasive 306 policy 144–145, 264 principle (of) 144 scientific see science structural see schemes of intelligibility; structuralism style of 304 see also reasoning argumentum ab auctoritate 302, 322 argumentum ab veritate 322 ars 64, 87, 190–192, 228, 229 boni et aequi 230 hermeneutica 89–91, 113–115, 118, 275 juris 303 art(s) 52, 151 artefact 158–159, 181 as if 81–86, 181, 223, 244, 247 see also Bouriau (Index of names); fiction; Vaihinger (Index of names) assertion validity of 281 association 200 assumpsit 259 astrology 310, 328, 331 astronomy Copernican 252 astrophysics 166 attitude epistemological 16, 47, 50, 247, 271 see also epistemology; Vaihinger (Index of names) interpretative 158 auctoritas 105, 110, 121, 215, 254 facit legem 217 aut… aut 106, 229 authoritas see auctoritas authority 105, 110, 224 axiology 28 axiom 26, 40, 102, 122, 123, 124, 125, 126, 128, 130, 172, 226, 240, 268, 298, 324, 325 legal 133, 138, 140, 233, 324, 325 moral 122 axiomata 111, 124, 186, 233, 239 juris 110, 111, 233

Index

axiomatic 74, 323 see also system; systematics barber see accident beach 206–208 Begriffsjurisprudenz 236 behaviour 14 culpable 25 human 135 behaviourism 12 Bible 53, 105 biology 21, 161, 166, 305 birds 86 block-effect 63, 64, 69, 159, 315 see also Watson (Index of names) bona fides see good faith book chain novel see Dworkin (Index of names) see also Corpus Iuris Civilis; Digest; Institutes; textbook bourgeois 95 Brexit 176, 234 bricks 164 bridge-building 311 Byzantium 160, 184, 316 cannibalism 151 canon law 53–54, 156, 175, 194–195, 204, 215, 219, 233, 301 capitalism 286 case easy 40 hard 143, 145 law 129, 134, 256 see also precedent casuistry 61, 62, 70–78, 101, 102, 127, 171, 235, 241 casus 302 cat (Cheshire) 227 categorisation 224, 233 see also category; classification; taxonomy category 24, 25 34, 159, 165, 168, 238, 239, 240, 300, 327, 328 conceptual 168 empirical 168 generic 190 legal 49, 50

369

quasi 247 see also Institutes causa 95–96, 107, 108, 220, 221, 229, 249 causality see causation causation 14, 20, 49, 57, 59, 70–81, 144–149, 162, 278, 286 see also schemes of intelligibility causative event see event cause see causation; contract centralism 155 certainty 94, 225, 330 certiorari 210 Chancery see court see also equity cheese-maker 73–74 chess 255, 304 child rights and see right (children) unborn 200, 201 choice value-laden 49 Christianity see canon law Church (Roman Catholic) 248 civitas 84, 217 sibi princeps est 216 claim 187 damages (in) 209 statement of 261 see also action; action classification 126, 165, 239, 251, 298 see also category; taxonomy code 58, 60, 118, 125, 129, 210, 225, 267, 294, 304, 320, 324–325 European 175 French see Code civil; Code de procédure civile Code civil 125, 167, 178, 181, 197, 203, 205, 220, 263, 311, 313, 314 Projet de 178, 314 Code de procédure civile 140 Codex 58, 106, 118, 191, 214, 322 codification 58, 101, 102, 175, 297, 299, 320, 324–325 cognitio extraordinaria 69 iuris 190, 191 coherence 15, 24, 25–26, 39, 65, 85, 124, 126, 131, 143, 238, 239, 240, 276, 281, 297, 310, 324, 325, 330

370

Rethinking historical jurisprudence

collatio 115 see also Cujas (Index of names) collectivism 299 collegiality 133 collegium 94 colonialism (legal) 155 column (broken) 78 command 88 commentary see law Commentators see Post-Glossators commerce 300 commodatum 63 see also contract (loan) communis opinio doctorum 110, 174 community 93, 145 interlocutors (of) 158 interpretative 15 scientific 11, 32 company commercial 202 law see law (company) see also corporation; persona; person; personality comparison 3, 220–221 compilare 58 complexity 286, 287, 311 concept 3, 24, 29, 61, 62, 63, 77, 83, 101, 159, 160, 165, 238, 239, 267, 276, 300, 327, 328 enrichment of 288, 330 feudal 207 form 176 legal 41, 50, 135, 320 mathematical 299 science of 40, 174 strategic 52 conceptualism 243 Concordia discordantium canonum 53 condictio 67, 85, 106, 107 condition social 160 consensus 15, 96, 110, 216, 218, 281, 305, 320 consent 147, 219, 256, 259 consequentialism see functionalism consistency 39 constitution imperial 88 constructivism 12, 17 legal 244

consumer 26, 141, 262 context social 150 contra rationem 88 contract 22, 25, 26, 37, 42, 47, 48, 50, 62, 63, 66, 68, 70, 75–76, 86, 89, 94, 107, 108, 145, 147, 156, 159, 165, 166, 167, 178, 192, 194, 196, 198, 199, 201, 210, 211, 216–222, 226, 227, 228, 235, 259, 278, 295, 306, 315 bilateral 76, 77 breach of 198 cause (and) 220 civil and common law compared 220–221 consent (and) 219 consideration (and) 221 deposit 62, 70, 76, 77, 80–81, 219 feudal 216 goods (sale of) 222 hire 62, 63, 64, 70, 77, 95, 101, 219, 228, 229 hire-purchase 222 innominate 220 insurance 222 legislation (as) 219–220, 321 loan 62, 63, 70, 85, 95, 106, 107, 206, 219, 228 mandate 85 named 220, 221 philosophy of 159 pledge 62 sale 62, 63, 70, 77, 95, 101, 159, 206, 219, 228, 229, 315 shipping 222 social 309, 310 stipulation 62, 70, 90, 95–96, 97, 101, 107 theory of 86, 96, 220, 221, 222, 259, 293, 311 see also obligation contractus 216 conventio 50, 86, 96, 216, 218 Convention see European Convention conveyance 67, 86, 107, 108, 194, 207, 249 see also ownership; traditio corn 69

Index

corporation 42, 62, 68, 69, 83, 94, 135, 199, 200, 215–216, 218, 302, 309, 310 aggregate 132 sole 133 see also person; persona; personality; universitas corporis incolumitas 122 corpus 94, 181 intellectuale 83 Corpus Iuris Civilis 3, 57, 59, 87 104, 105, 113, 115, 119, 162, 178, 214, 215, 223, 227, 230, 241, 250, 252, 254, 271, 280, 292, 293, 294, 300, 302, 303, 304, 320 convenience of 300 see also Digest, Institutes, Roman law correlation 14 correspondence 14, 24, 25 court Chancery 257–258 closed (all) 241 common law 257–258 criminal 154 English 257–259 Exchequer Chamber 130 family 154 French 154 process 209 covenant 209 cricket 142 crime 14 crisis epistemological 14 Critical Legal Studies 37, 276 Crown 207, 208 culpa 71, 76, 78, 86 see also fault; negligence cultura in iure 137 culturalism 137, 158–162 epistemology (and) 158–162 culture 1, 150–162, 176, 317 law and 150, 151, 159, 315–317 law-in 150, 151 legal 133, 278 method (and) 152–155 socio-political 161 theory (and) 155–158 cumulative see knowledge

371

cumulativité 279, 309, 329, 330 spiralaire 289, 305 curia 94 custody 82 custom 153–155 damage 83 intentional 87 wrongful 83, 91–93 damages 142, 145, 211–212, 258 breach of human right 212 equitable 211–212 expectation 211 in rem 211 law of 168, 199 reliance 211 restitutionary 211 see also damage damnum 83 injuria datum 83, 91–93 data 278, 279, 281, 287 social 295 storage of 327 death civil 201 penalty 54 debate 320 comparatists (between) 236 internal 305 debt 69, 106, 108, 147, 206, 209, 210, 211, 258, 261 déculturation 154 deduction 26, 40, 85, 101, 110, 119–120, 122–123, 126, 135, 172, 227, 231, 233, 241, 257, 269, 272, 285, 290, 295, 298, 325 see also logic; syllogism defamation see tort dé-finir 167 definition 119, 120, 123, 127, 164, 169–171 dangerous 26, 111 description (versus) 167–168 encyclopedic 168 delict 22, 23, 63, 66, 86, 94, 147, 194, 203 description 167–168 detentio 82, 180, 181 detention 180 detinue see tort

372

Rethinking historical jurisprudence

diachronic 4, 9, 225 see also viewpoint dialectics 61, 72–74, 75, 76, 106–109, 115, 116, 118, 124, 129–134, 144, 149, 165, 191, 249, 250, 272, 273, 293, 320, 330 see also schemes of intelligibility dialectica 53 diaresis 61 dictionary 168 legal 166 dictum 53, 54 Digest (of Justinian) 58, 59, 60, 70, 80, 85, 93, 101, 102, 105, 106, 114, 116, 118, 119, 169, 171, 190, 191, 228, 232, 250, 251, 272, 294, 295, 303, 321, 322 arrangement of 303 see also Corpus Iuris Civilis; Roman law Digesta 58 dignitas see dignity dignity 203 disability Hohfeldian see Hohfeld (Index of names) discipline 290–291 fragmentation of 288, 290 history of 282, 290 nature of 36 paradigm (as) 290 practical 272 progression 309 social science 245 see also science (social) structure of 288 discovery 211 discretion 224 administrative 212–213 judicial 235 distinctio 106, 107, 165, 229 distinction 90, 118 divisio 106, 165, 222, 229 division 90, 123 see also divisio doctrine legal 329 see also doctrine (la) doctrine (la) 27, 28, 126, 272, 277 dogmatic (legal) see method (dogmatic)

dogmatique juridique see method (dogmatic) dolus 87 dominium 42, 66, 77, 163, 176–179, 183, 184, 213, 214, 228, 231, 249, 256 directum 177 duplex 177 fragmented 178 utile 177 see also ownership dominus mundi 213 droit subjectif 185 see also ius; right drunkard 199 dualism 173, 174, 299 duck 11, 19, 249, 253, 289 see also rabbit duress 94, 242 duty 23, 143, 187, 200, 284, 297 care (of) 26, 146, 235, 240 private law 241 Hohfeldian see Hohfeld (Index of names) dynamic mysterious 317–318 easement 209 école dogmatique see method (dogmatic) economics 12, 21, 24, 41, 46, 53, 95, 135, 137, 139, 140, 148–149, 237 law (and) 27, 38, 46, 137, 148–149, 223, 280, 308–309 economist 18, 46 edictum 58, 70 education legal 6, 59, 128, 234, 248, 256, 257, 259, 268, 306–307, 327, 328–329 see also law (faculty) Parliamentary Report on see Parliamentary Select Committee reform of 234 efficiency (economic) 149 emendatio 114 see also Cujas (Index of names) emperor legislative power of 213 Roman see Justinian; Severus (both Index of names)

Index

source of law (as) 303 emphyteuta 320 Empire (Roman) 57–58 Classical 60–61, 65, 67 Post-Classical 60, 88, 99, 310 Republican 61 empiricism 112 engineering 243 enrichissement sans cause 242 enrichissement injustifié 242 enrichment conceptual 330 unjust see unjust enrichment enthymeme 272 entitlement see right entreprise littéraire 20 epistemologist see Atias; Blanché; Kuhn; Vaihinger (all Index of names) epistemology ix, 2, 6, 7–55, 56, 62, 72, 99, 100–101, 102, 104, 105, 111, 112, 113, 114, 121, 128, 147, 150, 151, 153, 158–162, 167, 189, 217–218, 225, 226, 240, 247, 251, 252, 254, 256, 262–263, 270, 270, 271, 275, 277, 279, 281, 282, 287, 290, 293, 294, 298, 305, 315, 318, 322, 323–325 as if see as if; Vaihinger (Index of names) attitude (as) see attitude culturalism and 158–162 diachronic 47 formalist 240 legal 2, 35, 55, 327 obstacle 10 philosophy (and) 36, 37 social science 6, 30, 50, 51, 54, 275, 330 synchronic 32, 47 see also knowledge; method; methodology; paradigm; schemes of intelligibility; theory equity 62, 156, 179, 199, 257–258, 296 error 107, 258, 278 correction of 114 writ of 258 see also mistake ethics 135 see also morality

373

Europe Christian 171 common law of see ius commune European Convention of Human Rights 189, 203, 212 event causative 21, 22, 23, 49, 147 evolution 46 concepts (of) 317 legal 1, 5, 296–298, 315–319 social 316, 318–319 exceptio 107, 108 doli 107 ex cultura ius oritur 137 ex facto ius oritur 78, 101, 122, 162, 229 ex pacto non oritur actio 219 existimato 122 expectation 186 explanation 14, 23, 51, 164, 284–287 see also understanding fact(s) 20, 169, 179, 180, 228 brute 75, 76, 152 comprehension of 152 cultural see culture engaging with 3 ethnographical 289 form of 97 language and 75 law (and) 82, 228 legalised 75 level of 238 mind independent 17 normative construction of 151 novel 11 question of 130 social 17–18, 97, 278, 279, 313 see also ex facto ius oritur factor counter-interpretative 157 faculty see law (faculty) fairness 88, 102 see also justice; law falsification 13, 26, 29, 270, 286, 287 see also Popper (Index of names) family 204–205, 296–297 fault 50, 71, 228, 256, 259 see also culpa; negligence fee simple 178 female gender mutilation 154

374

Rethinking historical jurisprudence

feminist legal studies 309 feudal see model fiction 16, 17, 21, 46–50, 79, 81–86, 130, 144, 147, 149, 173, 244, 245, 287, 296 theory 16, 47, 81–86, 93, 202, 245 fiction légitime 244 filiation 204 fire 92 fiscus 213 flock 79, 93, 97, 98 foreseeability 87 form 79, 125–126 content (and) 93, 100 substance (and) 223–246 forma 227, 232 dat esse rei 232 formalism 6, 50, 61, 62, 65, 76, 97, 161, 171, 223–246, 261, 272, 325, 329–330 common law (and) 233–237 conceptualist 237–238, 239, 241 doctrinal 238, 240 external 234, 236, 237–241 history of 227–230 internal 234, 236. 237, 240 legal 6, 39, 40, 41, 97, 223–246 neo- 4, 6, 223–246, 264, 330 rights (and) see model (rights) structural 24, 65 substantialism (and) 224 formalisation 289 forms of action see action (form of) fraud 62, 83–84, 107, 315 see also tort (deceit); dolus fructus 302 see also dominium; ius functionalism 136, 137–142, 144, 167, 235, 248, 269, 276, 289, 312, 325, 330 retreat from 312 see also method; schemes of intelligibility furtum 83 see also theft gender

law (and) 309 genus 66 species (and) 21, 61, 65–70, 74, 106, 119, 190 genus perire non potest 206 geography 46, 287–290, 305 geometry 135 see also mos (geometricus) gift 107 ginger-beer 166 Glossa ordinaria 319 Glossators 40, 105, 107, 109, 118, 164, 165, 174, 177, 214, 215, 230, 248, 249–250, 252, 292, 320 goal 145 God 15, 105, 323, 324 good faith 26, 62, 80–81, 180 goods 178 misappropriated 211 sale of 178 government 214 ascending these of 217 descending thesis of 217 monarchic 214 Roman principles of 214 grain 75–76 see also corn grille de lecture 29, 34, 37, 51, 56, 136, 138, 267 Grundnorm 310 habeas corpus 210 habitus 39, 40 heap 69, 97 Hercules 144, 328 see also Dworkin (Index of names) hereditas 68, 84 heresy 39 hermeneutics 14–15, 20, 37, 113–115, 124, 136, 143, 144, 167, 253 see also interpretation; schemes of intelligibility hierarchy theological 310 see also genus historian 17, 41, 44, 46 legal 42, 46, 264, 277, 318, 320–323

Index

see also Baker; Gordley; Jones (Walter); Lesaffer; Lobban; Maclean; Milsom; Kelley; Rempelberg; Schiavone; Stein; Tierney; Ullmann; Van Caenegem (all Index of names) historicism 114, 250 historiography 3, 34, 35, 41, 43, 45, 49, 56, 57, 65, 99, 100, 109, 185, 237, 246, 271, 274, 318, 329 history 2, 3–4, 20, 30, 45, 46, 55, 114, 135, 237, 238, 277, 286, 287, 290, 291, 327 comparative law (of) 6, 245, 27 cultural 293 comparative legal 173 doctrinal 143 economic 2 epistemology of 293 legal 2–4, 5, 7, 8, 9, 10, 30, 33, 34, 35, 45–46, 48, 51, 55, 163, 169–222, 227–234, 241, 291–298, 307–308, 320–323 loss of 322 macro- 44 micro- 44 science (of) 319 see also historicism; historiography holism 42–44, 150, 271, 288 individualism (versus) 42–44, 72, 280, 318 see also individualism; paradigm Holmes, Sherlock 14–15 homo œconomicus 53, 150 sociologicus 150 honesty 169 humanism 113–120, 162, 250, 252–254, 291–296, 323 humanisme historiciste 250 humanisme systématique 250, 254 humanist 121, 127, 177, 189, 271, 278, 302–303, 308 see also Cujas; Doneau; Gammaro; Turamini (all Index of names) humanities 280, 282–284, 328 hypotheca 177

375

idea

diabolical 175 ideology 26, 43, 95, 99, 148, 186, 214, 234, 310 judicial 157 image law (of) 41 metaphorical 24 immunity 187 see also Hohfeld (Index of names) imperialism legal 29, 34, 155 imperium 60, 164, 213, 214, 215, 216, 217 merum 213, 216 mixtum 213 in artem redactum 228, 230 in causa ius esse positum 70 in personam see action; ius; right in rem see action; ius; right incommensurable 11, 18 index 224 individual economic 95 legal subject (as) see person; persona individualism 42–44, 150, 189, 205, 299 holism (versus) see holism methodological 150 induction 101, 229, 269, 290, 325 inequality bargaining power (of) 269 infamia 83 infant 199 inference 123 see also logic; syllogism inheritance 62, 63, 66, 68 injunction 142, 210, 211 injuria 74, 91, 92, 203 inns of court 130, 255, 256 inquiry historical 296 paradigm see paradigm Institutes 60, 70, 102, 120, 212, 228, 293, 297, 315, 321–322 Gaius 23, 59, 64, 66–69, 84–85, 119, 152, 159, 192, 193–194, 222, 230, 277, 314, 316, 321

376

Rethinking historical jurisprudence

Justinian 49, 59, 64–65, 69, 101, 118–119, 159, 165, 173, 183, 191, 209, 217, 222, 230, 232, 257, 294, 297, 314, 319 printing (and) 314 system see person (things and actions); plan; scheme; system institution 159, 160, 165 legal 263 institutiones see Institutes instrumentalism see functionalism insult 74, 203 insurance see contract integrity bodily see interest law (in) see Dworkin (Index of names) intellectus 14, 16, 17, 18, 23, 48, 50, 51, 276, 278, 290 intention 181 author (of) 112 human 285, 286 legislator (of) 89, 116–118 owner (of) 97 interaction social 151 interdicta 180, 181 interdisciplinarity 36, 45, 114, 238, 239, 253, 267, 290, 308–309, 325, 326, 331 enemy (as) 326 interesse see interest Interessenjurisprudenz 140 interest 83, 139, 140, 141, 155, 159, 162, 168, 186, 192, 201, 211, 212, 295 animal (of) 203 bodily integrity (as) 140 children (of) 140, 154, 201 common 80 community 212 debt (as) 140 dignity (as) 140 financial 25 future 208 group (of) 202 individual 42, 192, 194, 212 land (as) 140, 207 liberty (as) 140 life (as) 140

reputation (as) 140 social 42, 139, 140, 146 wealth (as) 140 interpolation 41, 59, 114, 250, 292, 293 interpretatio 88, 89–91, 112, 116 ad literam 112, 116 ad sensium 112, 116 facti 90 facit ius 112 interpretation 14, 38, 52, 55, 79, 88–93, 115–118, 134, 143, 158, 163, 174, 189, 244, 275, 278, 286, 299 extensive 89 hermeneutics (and) see hermeneutics historical 114 law as see Dworkin (Index of names) literal 89, 112, 116. 325 logical 89 past (of the) 321 rules (of) see rule sense 112, 116 statutory 39, 72–73, 90, 91 strict 89 theory of 117 see also hermeneutics; interpretation; legislation; word ius 5, 43, 57, 58, 64, 66, 70, 78, 88, 89, 94, 119, 120, 121, 122, 129, 163, 164, 165, 169–176, 180, 181, 182–189, 190, 193, 203, 210, 217, 227, 228, 229, 230, 231, 232, 251 actionis 183 actionum 64, 185, 314 ad rem 182 civile 81, 102, 103, 163, 164 commune 103, 156, 174–176, 189, 330 dominii 70, 183, 184 finitum 90 gentium 81, 102, 103, 170 glossae 319 haereditatis 183, 184 honorarium 70, 88, 89, 92, 170 in personam 64, 65, 182, 183 in re aliena 183 in rem 65, 182, 188, 295 naturale 81, 95, 102, 122 nostrum 43, 122

Index

obligationis 183 personarum 314 possessionis 82, 179–182, privatum 54, 60, 68, 75, 170, 192, 218–222, 231 proprium 103, 156, 174, 175 publicum 54, 60, 68, 75, 170, 192, 212–216, 217 quasi dominii 183, 184 reale 183, 184 rerum 64, 185, 192, 205–209, 314 servitutem 183, 184 javelin 92 judge 31, 39, 93, 175, 298 behaviour of 142 change of mind of 133 college of 93 education of 143 English 264–265 French 269, 272 function of 264–265 personality of 142 political neutrality of 329 psychology of 142, 143 reasoning of 301–302 referee (as) 255 role of 322 see also Vinelott (Index of names) social background of 143 superhuman see also Dworkin (Index of names); Hercules trial wrong decision by 142 judgment commentary (and) 319 common law 269 French 269 judiciary see judge jurisdictio 163, 164, 213, 215 jurisdiction 164 jurisprudence 5, 34, 35, 37, 135 analytical 1 despair (of) 237 feminist 37, 309 historical 1–7 politics (and) 328 Renaissance 5 social science (and) 328

377

sociological 1 see also philosophy; theory jurist 6, 128, 300 Byzantine 81 classical 59, 113, 171 French 113, 291, 304 humanist 113–120, 245, 250, 251–252, 267, 271, 278 Italian 104, 131, 214, 265, 272 medieval 53–54, 65, 70, 73, 74, 78, 83, 96, 101, 104–112, 114, 115, 122, 131, 164, 165, 180, 182, 183, 202, 213, 217, 219, 229, 231, 232, 245, 249, 250, 252, 253, 265, 267, 271, 272, 274, 278, 293, 295, 302, 327 natural law 245, 267, 326, 330 post-classical 171 Renaissance 33, 89, 116, 230, 232, 267, 274, 291, 326, 327 Republican 61, 64 Roman 33, 53, 58, 162, 165, 249, 250, 253, 274, 302, 309, 327 jury 129, 234, 255, 258 jus see ius justice 38, 54, 88, 99, 164, 169, 171, 190, 195, 214, 225, 248, 302, 310 source of 195 justitia 163, 164, 169 king 199, 208 knowledge 3, 10, 56, 190–192, 222, 227, 232–233, 274–326 accumulation of 327 accumulative 275, 277, 278, 290 cumulative 2, 36, 275, 277 découpage of 46 enrichment of 330 formalism (and) 158 historical 34 importation of 290, 330 legal 61, 158, 263, 274, 275, 301, 325–326, 327, 329, 331 level of 288 local 55 methods of 225 see also method practical legal 303 progression of 274–326 refinement of 328

378

Rethinking historical jurisprudence

regression of 326 representation of 225 scientific 8–33 sedimentary 303–304 synchronic 31 see also synchronic system of 166 tacit 11 textual 276 see also epistemology; fiction La trahison des images 22 land 207 common 208 estate in 208 private 75 public 75 lord (and) 196 see also property; res; thing language 21, 75, 163–189, 317 ambiguity of 79 concepts (of) 161 form of 164 French 166 Greek 115 law (and) 316–317 legal 327, 328 technical 328 law 9, 13, 19, 31, 37, 46, 114, 153, 166, 276, 291–298 action (in) 153, 158 actions (of) 65, 67, 84, 119, 125, 140, 178, 182, 185, 192, 193, 196, 200, 209–212, 241, 265, 268, 277, 295 administrative 60, 168 American 236 appearance of 224 authority of 217, 323 authority to speak 158 autonomous discipline (as) 326, 329 black-letter 27, 269 books (in) 153 see also Digest; Corpus Iuris; Institutes; terminology; textbook boundaries of 29 canon see canon law change (social) and 312–313 children (regarding) 200

classification of 295 see also plan; scheme; taxonomy commentaries on 315, 319–325 company 200, 201 comparative 1, 27, 29, 34, 137, 146, 160, 240, 242, 243, 244, 271, 311 concept of 173, 214 conservative 262 constitutional 60, 141, 192, 203 consumes all 151 cultural concept (as) 276 culture (and) 137, 150, 314, 315–317 see also culture customary 130, 156, 195–196 damages (of) see damages definition of 34, 327 description of 22, 244 discourse on 319–325 divine 54, 68, 204, 205, 206 divisions of 214 see also plan; scheme; taxonomy doctrinal 27, 40, 269, 307, 311, 329 economics (and) see economics English 34 European Union 175 existence of 46, 244 external view 29, 30, 38 fact (and) 155 see also fact faculty 27, 104, 127, 254–255, 274, 284, 297, 306–307, 328, 329, 331 family 60, 140, 154, 201 feminism (and) 309 foreign 244 fragmented (as) 156–157 French 34, 125, 154, 167, 173, 195–197, 201, 203, 204, 220–222, 263, 277–278, 306–307, 309, 322, 324–325 fundamental 217 gender and 280, 309 German 3, 34, 40–41, 128, 129, 136, 161, 174, 202, 222, 226, 234, 242, 243 history of 163, 244

Index

see also history Holborn 255 human 54, 68, 204, 205, 206 identity of 153–159 ideology of 99 indigenous 157 inheritance 60 integrity (as) 144 internal view 29, 38 interpretative concept (as) 143 knowledge of 4 see also knowledge labour 168 land 47 language of 21, 38 layers of 265 learning of 153 see also learning, textbook literature and 280 see also Digest; Corpus Iuris; Institutes; terminology; textbook maker 158 meaning of 152 medieval 5, 40, 53–54 see also jurist (medieval) mental health 200 micro- 150–151 morality (and) 305 natural 171–174, 189, 206, 217, 232, 242, 245, 262, 264, 266, 270, 305, 323–324 nature of 21, 161 non-fundamental 217 obligations (of) see obligation(s) persons (of) 60, 67, 119, 185, 192, 193, 196–197, 198, 199, 200–205, 212, 251, 265, 328 philosophy (as a) 294 philosophy of 163, 190 see also philosophy points of 255 positive 217, 264, 266 practice (in) 153, 277 practice of 301, 321 principles of 302–303 see also principles, regulae juris private see private law procedural 43, 129, 130, 209

379

see also procedure professional 328–329 professor 175, 263, 277, 315 see also jurists property (of) see property public see public law question of 130 reform 127, 295 see also Parliamentary Commissions reporting 255 restitution see restitution Roman see Roman law rule of 38 school 6, 174, 268 science (as a) 24, 294, 297 science of 24 social process (as) 135 social purpose of 141 social science (as a) 27–31 society (and) 312–319 sociology (and) 309 source of 38, 190 substantive 43, 209, 210 teaching of 191, 301, 321 see also inns of court; textbook; university things (of) 60, 67, 68, 119, 125, 185, 192, 193, 196, 197, 198, 200, 205–209, 251, 265, 328 tort see tort trade-mark 141 transformation of 244 true 22 unity of 161 universal 125, 174 Western 267 Law of Restitution see Goff; Jones (Gareth) (Index of names) lawsuit ecclesiastical 195 secular 195 lawyer academic see jurist comparative 280 doctrinal 306, 310–311 natural 330 see also Grotius (Index of names) public 280

380

Rethinking historical jurisprudence

learning collegial 130 common 130 leasehold 178 legacy 62 legal reasoning 3, 4, 30, 50, 54, 56, 60–162, 166, 169, 224–225, 226, 238, 239, 242, 255, 272, 279, 299, 306–307 see also dialectics; hermeneutics; logic; method; methodology; schemes of intelligibility; syllogism Legis actiones 65 legislation 170, 175, 232, 296, 330 interpretation of see interpretation see also lex legislator intention of see rescript; rex est lex will of see quod principi placuit will of the people (and) see civitas; populus legitimacy modes of 286 lex 58, 88, 121, 163, 217, 220, 232, 321 Aquilia 71, 72, 73, 79–80, 91–93 authoritas facit 217 contract as 219–220 imperatum est 217 Regia 60, 213, 215, 216, 303, 310 lexical unity 166 liability 74 delictual 50 see also lex (Acquilia) ex contractu 163 libel see tort (defamation) libertas 122 liberty 122, 187, 242, 284 Hohfeldian see Hohfeld (Index of names) literature 52 Anglo-American 304 legal 256, 257 review 4–7 litigation 209 loan see contract locatio conductio 64, 77 see also contract (hire)

logic 27, 40, 62, 74, 80, 85, 109, 110, 111, 122–123, 124–126, 135, 136, 141, 166, 172, 225, 232, 249, 266, 287, 298, 302, 324 deductive see deduction syllogistic see syllogism logica nova 109, 232 loss economic 140, 169, 235 lunatic 199 magic 99 man see homo practical 138 mandate see contract map 23, 24, 49, 238 object of 24 social life (of) 228 sociological 120, 121 territory (and) 22, 48, 121 mappa mappae 24 marginalisation 153 marriage 170, 201, 204 Marxism 12, 318 mask 200 mathematics 15, 24, 25, 26, 40, 47, 121–127, 128, 130, 135, 136, 139, 161, 240, 294, 298, 311, 324 maxim (legal) 125 see also regula iuris meaning see interpretation commonly accepted 117 see also Gammaro (index of names) medicine 114, 243 mens 90, 116, 117 legislatoris 117, 134, 137–138 mentalité see mentality cultural 176 mentality 163, 233–234 formalist 233 legal 263, 272 metaphor 151, 164 metaphysics 15, 39, 62, 241, 266 method 2, 27, 29, 31, 35, 38, 50–55, 61, 89, 100, 104–136, 152–155, 162, 165, 169, 191, 224, 268–269, 293 casuistic see casuistry common law 129–134

Index

see also Baker; Priel; Lobban; Waddams; Weir (all Index of names) conflict of 44 cyclical 304 deductive see deduction; syllogism dialectical see dialectics dogmatic 126, 127, 137 exegetical 115 formal 329 French 113 functional see Cohen (Index of names); functionalism; scheme of intelligibility Glossators 104–107, 247–250 see also jurist (medieval) historical 293, 296, 302 see also Kelley (Index of names) humanists (of) 113–120, 250–254 see also Cujas; Doneau (both Index of names); humanists; interpretation; mos (Gallicus); philology legal 4, 56–162, 175, 248, 268, 325 mathematical 121–123 see also mos (mathematicus) office management 327 Pandectist see Pandectist philological 114, 312 plurality of 12, 13, 39, 283 Post-Glossators 107–112 see also Baldus; Bartolus (both Index of names); jurist (medieval); mos (Italicus) practitioner (of) 270, 302 progress in 277 Roman 60–103 scholastic 253 scientific 1, 125–127 social science 28 sociological 30, 282 see also methodology, schemes of intelligibility méthode dogmatique 126, 127, 136, 141 methodice 123 methodology 34, 35, 78,104–162, 148, 233, 244, 252, 256, 268, 269, 307

381

changes in 272 historical 292, 293, 296 legal 169 plurality of 283 post-Roman 104–162 see also method; paradigm; schemes of intelligibility methodus 123, 303 dogmaticus 125–127 metus 94 miroir économique 200 misrepresentation 211 mistake 62, 242 see also error model 11, 13, 16, 18, 20, 23, 24, 39, 44, 47, 151–152, 277, 278, 279–281, 323 anti 280–281 astrological 310 axioms (of) 207, 214 see also axiom coherent 310 consolidation of 288 development of 318–319 economic 31 epistemological see epistemology; schemes of intelligibility feudal 207, 214 Gaian see Institutes; person (things and actions); plan; scheme historical 277 Hohfeldian see Hohfeld (Index of names) idealist 312 inference 330 institutional 161, 267 see also Institutes; plan; scheme market 53 obsolete 245 plurality of 288 refining of 310 rights see right rule 102, 142, 276 scientific 23 synchronic 327 theological 310 modi arguendi in iure 106 money 69, 84, 100, 106, 107, 205 monism 155, 157, 161, 242 moot 130

382

Rethinking historical jurisprudence

point 130 morality 135 law and 305 mortgage 177 mos Gallicus 112, 113, 175, 251, 292, 302–303, 312 geometricus 136, 143, 254, 257, 267, 295, 298, 303 Italicus 112, 113, 122, 175, 251, 253, 292, 295, 303, 308 mathematicus 121–127, 129, 138, 233, 234, 236, 254 movement horizontal 288, 289, 290 levels of 290 vertical 288, 290 mule driver 70–71, 92, 102 municipium 83 murder 140 name 165–166 narrative 41 nature 15, 190, 266 culture (versus) 280 Naturrecht 128 Nazis 42 negligence 26, 76, 86, 211, 235 contributory 71–72 see also culpa; fault; duty (of care); tort negotiorum gestio 85 nemo jurista nisi Bartolista see Bartolus (Index of names) neo-formalism see formalism nomina 44 nominalism 43, 44, 218, 295 non-coherence see coherence nonsense conceptual 142 transcendental 135, 138, 226, 245 see also Cohen (Index of names) norm 38, 111, 327 cultural 153 legal 38, 40, 156 moral 154 pyramid of 24, 29, 35, 36, 265, 266, 321 see also Kelsen (Index of names) social 18, 36, 154, 161

see also rule nostalgia 223, 237, 240, 245 novel chain 29, 143 see also Dworkin (Index of names) Novellae 214 nudum pactum 95, 156 nuisance see tort numerology 136 Nutshell 160, 313–315 object see thing; res religious 205 obligatio 66, 70, 267, 295 ex contractu 163 quasi ex contractu 50, 194 see also obligation(s) obligation(s) 62, 66, 68, 95, 193, 194, 221, 294, 297 actions (and) 119 children (to) 173 contractual 192 see also contract ex contractu 163, 193, 194 ex delicto 193 see also delict; tort ex maleficio 194 see also delict; tort law of 49, 67, 69, 76, 169, 174, 185, 192, 196, 197, 199, 209, 251, 260, 269, 311, 321 non-contractual 192 quasi ex contractu 50, 194 quasi ex maleficio 194 see also Birks (Index of names) observation level of 35, 40, 44–46, 283, 286, 318 see also Desjeux (Index of names) obstacle epistemological see Bachelard (Index of names) official public 199 omnia in corpore iuris inveniuntur 105, 230 ontology 15, 62, 63, 77, 89, 97, 98, 102, 110, 121, 150, 156, 225, 228, 229, 322 operation level of 288, 292, 303

Index

opposito 106, 131 orality 130, 131, 133 order 171, 190–192, 302 normative 182 see also system orientation diachronic 290 paradigm see paradigm synchronic 290 see also model; schemes of intelligibility; theory ownership 26, 37, 42, 48, 62, 63, 67, 70, 75–76, 107, 108, 165, 166, 176–179, 181, 197, 213, 228, 235, 256, 302, 320, 321 beneficial 235 definition of 167 transfer of see conveyance; traditio see also dominium pact 216, 217 bare 95, 218, 249 clothed 218 see also pactum pacta sunt servanda 218 see also pactum pactum 216, 217 mutua 217 nudum 218 vestitum 218 Pandectists (Pandecticism) 26, 49, 226, 233, 234, 242, 245, 284, 312, 330 Pandects see Digest paradigm 7–55, 72, 137, 247, 249, 251, 252, 255, 257, 260, 262, 268, 271, 272, 276, 279–281, 290, 307, 331 absence of 289 authority 19, 37–42, 46, 105–106, 237, 254, 272, 273, 280, 281, 328, 329, 331 change of 262, 265 conflicts of 288 cultural 29, 318 diachronic 287–288 enquiry (inquiry) 40, 280, 329 holistic 288 individualistic 18, 43, 288 institutional 269 Marxist see Marxism methodological 268

383

nature 29 orientation 283, 286 pre-19, 289 science 29 synchronic 287 weaker 271 see also Fekete; Kuhn (Index of names) Parliament Commissions 257–259, 313 Select Committee on Legal Education 128, 234, 259 parochialism 189 partnership 202, 204–205 see also societas pas d'intérêt pas d'action 140 pastiche 223, 237, 246 paterfamilias 204, 296 patrimonium 68, 200, 205 patrimony 67, 68, 69, 94, 202, 203, 205, 207 pecudes 91–92 peculium 94 pendulum 236 periculum 78 person 83, 152, 187, 191, 262, 268, 294 Aries 23 capacity (and) 200 classes of 198 cleric 195 death of 201 diligent 86 disappearance of 201 fictional see corporation; persona (ficta); universitas human 201 indigenous 155, 158 layfolk 195 legal 23 see also corporation; universitas reasonable 330 thing (contrasted with) 65 things and actions (and) 23, 66, 103, 120, 125, 159, 193–194, 230, 251, 265, 281, 294, 314, 321 see also Institutes unborn 200, 201 see also persona

384

Rethinking historical jurisprudence

persona 23, 45, 66, 83, 94, 121, 122, 152, 182, 200, 201, 205, 210, 217, 222, 267, 294, 295, 321 animal (of) 202, 203 church (of) 202 ficta 84, 202, 215 res et actiones see Institutes; person (things and actions) singularis 42, 94 see also corporation; mask; person; universitas personality corporate see corporation; universitas legal 47, 84, 140, 200, 202, 204, 302 right see law (of persons) philology 41, 114, 250, 252, 267, 276, 291, 302 parody of 115 philosopher 97, 217, 291 legal 38, 280, 300, 303, 311–312 medieval 53–54 see also Aristotle; Dworkin; Leibniz; Kant; Vaihinger (all Index of names) philosophy 21, 31, 32, 102, 114, 139, 190, 191, 237, 276, 282 as if 16, 46, 47 see also Vaihinger legal 37, 102, 163, 173–174 see also Dworkin (Index of names) mathematics (of) 15 moral 304 old 246 political 304 practical 292 procedural 262 realist see Cohen; Frank (Index of names) true 102 see also epistemology; jurisprudence; theory physics 14, 17, 139, 274, 285 plan Gaian 186, 188, 251 see also Institutes; person (things and actions); scheme pleading 258, 261, 268 pledge 62

pluralism 161 epistemology (and) 158 legal 156, 158, 162 police 146 legal academics as 39 policy 141, 144, 145–146, 238, 239, 264 social 141, 142 politics 52, 140, 151 law (and) 301 see also science (political) pollution 261 pontifices 61 pope 214 populus 93, 213, 215, 216 portrait official 269 see also law (French) positio 106, 131 positivism 126, 139, 151, 155–156, 189, 242, 243, 244, 264, 285, 287, 289, 290, 305, 309 post 175 see also jurisprudence; theory (legal) possessio 66, 77, 163, 180 ad interdicta 181 ad usucapionem 181 civilis 181 naturalis 181 possession 37, 48, 62, 63, 67, 77, 78, 82, 93, 98, 101, 141, 159, 166, 178–182, 229, 235, 256, 259, 293, 315 land (of) 258 natural 181 right (of a) 181 see also ius (possessionis); possessio possessions 140 post-colonialism 1 Post-Glossators (Commentators) 73, 105, 109, 110, 112, 113, 116, 124, 165, 174, 176, 202, 214, 215, 216, 218, 252, 292, 309, 310, 320 see also Baldus; Bartolus (Index of names) potestas 75, 112, 183, 184, 185, 188, 213, 217, 231 patria 204 power 187 Hohfeldian see Hohfeld

Index

see also dominium; imperium; potestas practice cultural 135 practitioner 268 methods of 270 praeceptum 88, 102 pragmatism 12, 82, 139 precedent 128–129, 131, 134, 145, 146, 280, 322 predictability 25 prescription 181 prescriptivism 156 princeps legibus solutus est 213 principium 87, 110, 111, 122, 124, 165, 172, 186, 232, 233 principle 46, 54, 87, 124–125, 126, 129, 130, 143, 144, 145, 169, 172, 175, 232, 239, 269, 275, 276, 293, 302–303 axiomatic 268, 324, 325 see also axiom common 175 exception to 54 fundamental 265, 324 pleading (of) 268 policy (versus) 145 scientific 325 see also regula iuris privacy 140, 142, 203 private law 8, 66, 142, 161, 192, 196–197, 204, 212, 215, 238, 241 public law and see public law theory of 222 privilege 187 Hohfeldian see Hohfeld (Index of names) procedure common law 129, 130, 234, 254, 255, 259, 268 inadequate 258 legal 65, 69, 141, 224, 294 reform of 234, 257–259 Romano-Canonical 129, 174, 268 see also law (of actions) proceedings commercial 210 guardianship 210 in personam 25 marital 210

385

minors 210 ordinary 210 possessory 210 revindication 210, 211 special 210 summary 210 product 166 profession legal 29, 301 memory of 303 programme 12, 18, 19, 30, 46, 253, 278, 279–281, 283, 304 computer 143–144 human 144 legal 301 level of 288 model (versus) 279 plurality of 12, 20, 288 progression (and) 301, 303 programme de niveau 288 programme passerelle 288 progrès réflexif 36 progress 33, 36, 296–298 circular 330 lack of 323 promise 196 property 76, 94, 97, 100, 167, 294, 300 community 204 family 204 forms of 152 immovable 195 intangible 191 intellectual 152 land 207 law of 26, 37, 67–70, 76, 82, 168, 182, 185, 199, 209 moveable 195 performance (live) (as) 206–207 personal 199, 206–207 real 199 theory of 182 see also res; thing proposition legal see principle linguistic 285–286 proprietas 176, 183 see also dominium; ownership propriété (la) 178 protestant ethic 286 prudentia iuris 169

386

Rethinking historical jurisprudence

pruner 86–87, 92 psychoanalysis 12, 52 psychology 24, 46, 135, 139, 237 public law 142, 161, 192, 203, 212–216, 266, 301 history of 2, 212–216 private law (and) 36, 42, 60, 102, 194, 196–197, 212, 213, 214 theory of 222 puzzle-solving 10–11, 32–33 quasi 49–50, 81, 85 categories 247 quasi-contract 47, 49, 50, 84–85, 86, 194 quasi-delict 49, 84–85, 86, 194 quasi in possessione 181 question research 1, 2 quod nostrum est 66, 231, 272 quod omnes tangit 215 quod principi placuit 213 rabbit 11, 19, 249, 253, 289 see also duck rape 140 rapport 269 ratio 88, 90, 118, 172 legis 117, 118, 325 naturalis 170, 172, 231, 232 recta 117, 121, 232 rationalisation scientific 228 rationality 121, 129, 279 internal 319 legal 97, 239 structural 124 see also coherence; science realism 16–17, 18, 37, 158, 189, 202, 224, 264 American 138, 142–143, 223, 226, 236–237, 248, 262, 263, 303 see also Cohen; Frank (both Index of names) epistemological 48 legal 1 realist 16–17, 267 American see realism (American) anti 16–17 see also realism reality 16, 22, 37, 44, 45, 47, 48, 51, 55, 63, 82, 139, 151, 224, 270, 287

access to 287 economic 55 ordering of 294 political 55 representation of 22 social 55, 120, 240, 294 verifiable 139 reason natural 171, 190, 323–324 right 117 reasoning abstract 225, 323 absurd 94 actional see schemes of intelligibility (actional) axiomatic 240 see also axiom bottom-up 70, 74, 77, 78, 101, 186 casuistic 50, 61, 62, 240 see also casuistry causal see schemes of intelligibility (causal) circular 147 deductive see deduction; syllogism dialectical 77 see also dialectics; schemes of intelligibility (dialectical) dogmatic 233, 263 fact-specific 225 see also fact formalistic see formalism functional 223 see also functionalism; schemes of intelligibility (functional) hermeneutical see hermeneutics; schemes of intelligibility (hermeneutical) Hohfeldian see Hohfeld (Index of names) inductive see induction internal 225 judges (of) 130 legal see Alfenus; Bergel; Bartolus; Champeil-Desplats (all Index of names); legal reasoning metaphysical 233 model 280 moral 225

Index

natural 172 policy 223 see also policy practical 62 practitioner (of) 263 rational 80 right 232, 323 scholastic see dialectics scientific see falsification; Popper (Index of names); schemes of intelligibility (causal) social 225 structural see schemes of intelligibility (structural) subtle 105 technique 307 top-down 70, 77 words (with) 164 rectification 210 reductionism 285 referee 255 reference cross- 230, 248 reform law books (of) see Maine (Index of names) legal 257–259 regula iuris 46–47, 60, 64, 70, 86–89, 102, 110, 111, 121, 122, 123, 124, 125, 127, 158, 175, 186, 189, 209, 215, 228, 229, 232,233, 259, 265, 266, 293, 294, 321, 323, 324, 325 regulation 330 rei vindicatio see vindicatio relation 170 bilateral 242, 243 inner 240, 297 jural 24, 186–187, 242, 243 words and things (between) 253 relativism 15, 16 religion 151 remedy23, 168, 176, 180, 181, 182, 204, 209, 211, 227, 257, 259, 267, 315 equitable 210 see also action; action; damages; debt, injunction; specific performance renovatio imperii 58 report see Parliament reputation 25–26

387

res 14, 17, 18, 22, 23, 42, 45, 48, 49, 50, 66, 67, 68, 83, 90, 121, 122, 152, 182, 200, 205, 218, 222, 267, 276, 278, 290, 294, 295, 321 corporalis 54, 66, 68–69, 182, 193, 206 extra commercium 208 hereditariae 68 incorporalis 23, 54, 68–69, 83, 84, 152, 163, 181, 182, 186, 188, 191, 193, 202, 206 publica 216 sanctae 206 see also thing rescission 210, 211 rescript 91 research empirical 330 interdisciplinary see interdisciplinarity scientific see Kuhn; Popper (both Index of names) responsibility individual 71, 300 responsum 61, 70, 228 prudentum 170 restitution 13, 226, 266 see also unjust enrichment revolution 7, 44, 263, 271, 274, 323, 326 bourgeois 286 Copernican 12 counter- 223, 237 epistemological 161–162 French 99 humanist legal 331 methodological 115 nominalist 271, 295, 323 paradigm 252 scientific 2, 7, 8–33, 257–273, 289, 327, 329, 330, 331 see also Kuhn (Index of names) rex is lex 88 right(s) 23, 43, 49, 70, 119, 120, 121, 122, 137, 140, 143, 146, 147, 161, 171, 172, 182, 183–189, 200, 205, 210, 211, 230, 251, 257, 284, 297, 327 action (to an) 180 analysis 242–243

388

Rethinking historical jurisprudence

animal (of) 188, 202–203 beach (access to) 207–208 bodily integrity 122, 203 claim 242 confiscation of 146 damages (to) 145 dignity 122, 203 Dworkin (and) see Dworkin family home (in) 204 family life (to) 203 fundamental 154, 188–189 group 145 human see European Convention improper use of 193 in personam 187–189, 192, 193, 198, 199, 328 in rem 187–188, 189, 192, 193, 198, 199, 328 individualistic 271, 323 inheritance (to) 184 legal 159, 209, 241–242 liberty (to) 122, 203 life (to) 122, 203 man (of) 188 mutation of 189 nature of 183–189 non-patrimonial 203, 328 ownership (of) 184 see also dominium, ownership patrimonial 328 personal 176 possess (to) 82, 180, 293 see also ius (possessionis) primary 198 privacy (of) 203, 212 private 213 property 135, 176 quasi-ownership 184 real 184, 204 remedy (and) see ubi ius ibi remedium; ubi remedium ibi ius reputation (to) 122 sanctioning 198 servitude 184 subjective 231, 234, 251, 262, 265, 309 violation of 23 vote (to) 202 rigour

lack of 318 risk 63–64, 78, 228 role judge (of) see judge Roman law 1, 3, 4, 5, 26, 35, 40, 41, 42–43, 49, 50, 53, 54, 55, 56–103, 115, 124, 125, 129, 134, 156, 158, 160, 161, 162, 163, 164, 165, 169–171, 172, 173, 174–186, 189, 190–194, 200, 201–202, 203, 204, 205, 206, 209–210, 212–217, 225, 227–228, 229, 231, 233, 234, 235, 240, 252, 268, 271, 277–278, 284, 292, 296, 297, 301, 307–308, 311, 314, 315, 319, 320, 321, 323 authority (as) 254 English law (and) 209, 241, 296–297 medieval see Glossators; Post-Glossators; jurist (medieval) myth of 79 reception of 175, 234, 255 rediscovery of 101, 104, 213–216, 248, 324 renaissance of 164 renewal of 99 true 250 rule 11, 102, 121, 123, 144, 161, 162, 235, 266, 268, 275, 276, 293, 295, 298–299, 316, 322, 324, 327, 329 absolute 54 a-historical 322 golden 90 interpretation (of) see interpretation; meaning legal 37–38, 39, 40, 46–47, 70, 79, 88, 111, 121, 131, 135, 157, 158, 159, 160, 224, 228 literal 90 mischief 90, 137 model 276, 280 non-legal 323 parole evidence 156 primary 322 recognition (of) 310 relative 54 secondary 322 source of 322–323 system of 157

Index

see also axiom; regula iuris rumpere 92 sale see contract (sale) scheme institutional 120, 125, 127, 129, 192, 193–194, 197, 198, 199, 209, 251, 314 see also Institutes; person (thing and action); plan, system intelligibility (of) see schemes of intelligibility taxonomical see taxonomy schemes of intelligibility 12, 13, 19, 29, 30, 31, 44, 45, 46, 50–54, 56–57, 136, 267, 271, 272, 276, 279, 282, 286, 289, 304, 307, 325 actional 52–53, 142–144, 150, 282, 330 causal 12, 13, 17–18, 20, 51, 144–149, 282, 287, 313, 330 dialectical 31, 53–54, 77, 101–102, 116, 267, 272, 282, 299, 304, 305, 330 see also dialectics functional 44, 51, 52, 79, 80, 81–86, 102, 138, 148, 267, 282, 299, 305, 325, 330 see also functionalism hermeneutical 14, 31, 52, 79, 102, 113–115, 134, 137, 267, 275, 282, 287, 299, 305, 330 see also hermeneutics structural 12, 31, 44, 51–52, 65, 102, 148, 267, 282–283, 298, 299, 305, 310 see also structuralism scholarship civilian 259 canonist 331 doctrinal 237 French humanist 293–294 history of legal 271 legal 256, 300, 306, 326 Roman law 331 social science 331 scholasticism 54, 250, 253 school cultural 289

389

social 289 science 2–3, 31, 325 concepts (of) 174 credibility as 24 epistemology (and) see Blanché; Kuhn; Popper (all Index of names) German legal see Pandectist history of 8–33 human 12, 13, 39, 284, 290 law as 20–24, 28, 135, 247, 263 legal 33, 85, 161, 174, 175, 242, 243, 324 see also Kelsen (Index of names) linguistic 292 meta- 36 methods of see falsification; Popper (Index of names) natural 1, 3, 44, 270, 287, 289, 305, 324 neuro- 46 normal 10, 11, 20, 249, 252, 253, 262–263, 267, 269 object of 23 philosophy of see Blanché; Kuhn (both Index of names) political 52, 282, 328 principles of 288 social 12, 13, 14, 17, 18, 27–31, 33, 35, 39, 41, 44, 134, 237, 245, 263, 267, 271, 275, 276, 279–284, 290, 304–305, 308, 318, 327, 328, 329 sociology of 20 spirit (of the) 285 universal 233 scientia 64, 111, 118, 190–192, 227, 232 demonstrativa 233 iuris 233, 242, 275 scientific method see Popper statement see Popper scientist legal see Pandectist natural 8 social 8, 12, 146, 274, 291, 330 sedimentation 55, 330 self-defence 172 sense

390

Rethinking historical jurisprudence

common 145 lack of see nonsense sensum 116 sententia 112 legis 118 servitude 62, 63, 181 equitable 209 ship 42, 75–76, 93, 96–97, 98 sic et non 53, 106 sign 285 signans 52 signatum 52 significatio 116 signified 52 signifier 52 singuli 217 skill legal 327, 329 professional 327 slave 70–71, 79–81, 86–87 slavery 152, 201, 231 smoke 74 societas 94, 202 see also contract; partnership society 44 feudal 177, 179, 249 industrial 291 no such thing as 204 progressive 1, 2, 296 sociologist 294 legal 316 see also Cotterrell (Index of names) sociology 20, 21, 24, 28, 30, 40, 44, 52, 134, 276, 283, 287, 288, 290–291, 296, 309, 327 legal 126, 316 see also Cotterrell (Index of names) software 294 solutio 106, 131 space legal 161 state of nature 218 specific performance 211 stage axiomatic 226, 241, 283–284, 297, 299 deductive 226, 283–284, 296 descriptive 226, 283–284 inductive 226, 241, 283–284, 296 post-axiomatic 226

see also Blanché (Index of names) state 212, 216, 262 statement false 25–26 scientific see falsification; Popper (Index of names) trivial 327 statistics 148, 278, 296 statum 212 status 43, 60, 95, 155, 200, 296 author (of) 319 epistemological 189 in rem 178 public 213 statute interpretation of see interpretation see also legislation stipulation see contract (stipulation) structuralism 12, 24, 66, 76, 124, 137, 140, 161, 289, 312, 317 post- 317 see also schemes of intelligibility; structure structure 29, 66, 160, 286 institutional 224, 257 see also plan; structuralism; system student 4, 9, 304 medieval 329 see also education studia humanitatis 113 style 41, 293 subject discipline see discipline legal 200 see also person subordination 153 subrogation 205, 261 Summa Theologiae 54 suum cuique tribuendi 169, 231 swan 13, 277 syllogism 40, 74, 109–110, 112, 124, 127, 136, 165, 225, 233, 249, 265, 272 analytical 272 dialectical 272 see also deduction, logic synchronic 225, 323, 325, 327 see also view synthesis 27, 248, 269, 293

Index

system(s) 24, 29, 51–52, 65–66, 76, 116, 128, 135, 157, 159, 167, 181, 191, 228, 229, 248, 293, 297, 302, 315, 316, 317 concepts (of) 136 institutional 125, 281, 315 see also Institutes; person (things and actions) rules (of) 122, 136 sub- 315 theory 159–160, 315–318 systemisation 24, 26, 73, 126, 189, 198, 210, 233 tabella 123 taxonomy 2, 14, 21–22, 23, 25–26, 49, 106, 116, 118, 189, 239, 240, 266, 267, 297 legal 21, 23, 25, 48, 49–50, 64, 65–70, 84–86, 118, 190–222, 229, 234, 298 progress (and) 297 see also category; system; person (things and actions) teaching see law (faculty, school); university teleology 73, 286 term 165–166 name (versus) 165–166 terminology 2, 3, 24, 100, 163–189 rigorous 298 territory see map testimony false 117 testing 13, 14, 15, 26 see also falsification text(s) 20, 41, 42, 46, 52, 104, 224, 229, 230, 249, 277, 299, 306 accumulation of 278 authority of 105–106, 323, 329 Chinese 99 Coptic 99 corruption of 292 Ethiopian 99 interpretation of see interpretation legislative see legislation recycling of 316 Roman see Corpus Iuris Civilis; Digest; Institutes

391

scientific 287 textbook 10, 32, 33, 38, 39, 126, 127, 129, 160–161, 244, 248 introductory 160–161, 313–315, 331 legal 256, 259, 295, 306, 315, 319–323 reform of 295, 323 scientific 312 student 321 see also Institutes teaching 228 theatre 200 theft 63, 66, 76, 80, 83, 85, 97, 117, 140 see also furtum theocracy 214 theologian 291 see also Puddefoot (Index of names) theology 15, 19, 37, 52, 53–54, 121, 214, 230, 254, 281, 282, 283, 310, 328, 329 theorem 123, 124, 135, 138 Pythagoras 243 theorist legal 303, 318, 320–323 see also Austin; Dworkin; Hart; Kelsen; Kuhn theory 2, 10, 14, 24, 37, 41, 46, 47, 99, 103, 148, 149, 152, 155–158, 163–164, 167, 181, 190, 222, 272, 279, 289, 330 absence of 288, 306 abstract 171, 264 anti-239–240 art (of) 21 building 176, 189 comparative law (of) 35 confrontation between 305 contract (of) 37, 63 see also contract (theory) equity (of) 37 fiction see fiction government (of) 300 see also Ullmann (Index of names) gradation of 265 high 237 interpretation (of) 117 interpretative 158

392

Rethinking historical jurisprudence

legal 4, 5, 7, 9, 31, 35, 60, 102, 103, 137, 149, 150, 153, 170–171, 174, 192, 234, 245, 262, 270, 279, 300, 305–312, 308, 309, 310, 313, 320–323, 327, 328, 330 mathematical 15 micro- 289 mirror 316 natural law 270 see also law (natural) norm 35 object of 24 ontological 15 see also ontology pastiche 246 patrimony (of) 205 pluralism (of) 162 plurality of 18, 19, 288 political 31, 143, 214, 216–218, 301 positivistic 306 private law (of) 222 property (of) 37, 182 public law (of) 192, 222 pure 36, 264 see also Kelsen (Index of names) rational choice 12 refinement of 309–312 social science 28 socio-legal 276 sovereignty 157 tort (of) 37 utility of 16 thermodynamics 243 thesis 307 anti- 307 Watson’s 313–319 see also Cotterrell; Legrand; Watson (all Index of names) see also approach; theory thing(s) 107, 152, 188, 205, 268 coherent 98 collection of 98 common (in) 206 consumable 69, 206 corporeal 98, 193, 195 ecclesiastical 195 in action see action (chose) incorporeal 101, 195

see also res (incorporalis) intangible 68, 206 non-consumable 76, 206 physical 180–181 private 68 public 68, 206 single 98 spiritual 195 tangible 68, 189, 206 see also property; res thinking legal 155 mythical 143 post-colonial 155 realist 143 Titanic 312 tort 22, 23, 37, 142, 147, 179, 198, 199, 203, 207, 211, 212, 226, 240, 243, 259, 279 conversion 179, 207, 211 cost of 243 defamation 203, 329 detinue 210 negligence 211, 235 see also negligence nuisance 207, 210, 211 trespass 179, 203, 207, 208, 210, 211 trover 210, 211 town 23, 84, 191 tracing 261 traditio 67, 207, 249 see also conveyance transplantation 160, 245 cultural construct (of) 152 legal 316–317, 319 trust 179, 235 truth 15, 16, 17, 20, 23, 35, 46–50, 105, 110, 123, 224 tutorship 62, 215 Twelve Tables 284, 298 ubi ius ibi remedium 186, 251 ubi remedium ibi ius 186, 251 ubi societas ibi ius 43, 121, 217, 271, 323 ubinam gentium sumus 226 understanding 23, 284–287 cross-cultural 157, 158 undue influence 242

Index

universitas 23, 42, 68, 69, 83, 84, 94, 163, 191, 201, 205, 206, 215, 216 personarum 202, 205 rerum 202, 205 see also corporation university 284 Bologna 248, 301 Cambridge 311 continental 127 French 263 London 311 medieval 304 see also jurist (medieval) unjust enrichment 147, 209, 242, 260, 261, 266, 267 usucapio 180 usucapion 97–98 usufruct 62, 66, 180, 193 usus 302 usus modernus pandectarum 26, 312 utilitas 117, 192 privata 212 publica 212, 215 validation 25–26 criteria of 25 vehicle loaded 70–71 motor 278 verba 90, 91, 96, 112, 134 lucida 112 see also words Vienna Circle 285 viewpoint diachronic 303, 308, 330 nature 317

393

professional 329 scientific 317 synchronic 303, 308, 311, 330 vinculum iuris 220 vindicatio 67, 70, 108, 176, 179 vis 112 vision change of 11–12 vita 122 vocabulary 217 vocation scientifique 88 volonté 197 voluntas 90 legis 90, 91 wagon 70–71, 92, 102 Westminster Hall 131 Whiskas 186 whole parts (and) 79, 93–98 will (mind) 108 emperor (of) 117 will (succession) 89, 94, 107 woman married 199 words 90, 112, 163–189 ambiguous 90, 112 formal 227 interpretation of see interpretation meaning of 134 meaningless form of 316 see also verba writ see action (form of) wrong 23, 147 see also culpa; tort